HCPTS |

Profession: Operating department practitioner

Registration Number: ODP35988

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 08/04/2024 End: 17:00 09/04/2024

Location: Virtual via video conference

Panel: Conduct and Competence Committee

Outcome: Suspended

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Allegation

As a registered Operating Department Practitioner (ODP35988) your fitness to practise is impaired by reason of misconduct.
In that:

You inhaled and misused anaesthetic gases, at your place of work whilst on duty on or around:

2 April 2018
16 June 2019

The matters set out in allegations 1 above constitute misconduct.

By reason of your misconduct your fitness to practice is impaired.

Finding

Preliminary Matters

Application by the HCPC to amend Particular 1 of the Allegation

1. The original form of Particular 1 did not separate out the two dates upon which the Registrant was alleged to have inhaled and misused anaesthetic gases. The Presenting Officer applied to amend Particular 1 of the Allegation to separate the two distinct dates on which the alleged conduct was said to have occurred. The HCPC’s application was not opposed by Ms Shah on behalf of the Registrant.

2. The Panel received legal advice in respect of amendments to allegations.

3. The Panel acceded to the HCPC’s application to amend Particular 1, being satisfied that it was appropriate and better particularised the Allegation. The Panel determined that the amendments would not result in the Registrant being prejudiced. The Allegation as it is set out above is in the amended form.

Hearing in private

4. Ms Shah on behalf of the Registrant stated that at some point in the proceedings it would be necessary to refer to specific details in respect of the Registrant’s health. It was proposed that this could be dealt with in a discrete portion of the hearing and so her application was for the Panel to exercise its discretion by hearing in private that part of the proceedings where the Registrant’s health was referred to.

5. The HCPC argued that there ought to be a delineation between health matters in general and matters of health which were relevant to the Allegation and ought to be heard in public.

6. Ms Shah noted that there would be reference to the Registrant being pregnant and saying she was ‘jittery’. She stated that she did not propose to deal with those matters in private. However, Ms Shah argued that other matters in respect of the Registrant ought to be dealt with in private.

7. Ms Crine on behalf of the HCPC indicated that she was not opposed to this approach.

8. The Panel accepted advice from the Legal Assessor. There is a presumption that all hearings should be in public but that there were exceptions to this rule and one of those was the protection of the private life of the Registrant. The Legal Assessor drew the Panel’s attention to the Practice Note entitled Conducting Hearings in Private.

9. The Panel granted the application to hear those matters which relate to the Registrant’s general health in private, in discrete parts of the hearing. The Panel noted that there would be reference to the Registrant being pregnant and saying she was ‘jittery’, the Panel noted that these parts of her evidence would be heard in public. The Panel considered that whilst there was a public interest in this matter being heard entirely in public, the Registrant’s right to a private life outweighed that public interest in this instance. As such references to the Registrant’s general health should be heard in private.

Background

10. The HCPC received a referral from the Registrant’s employer, Bradford Teaching Hospitals NHS Trust (the Trust) on 28 October 2020. The referral indicated that the Registrant had been subject to an investigation in April 2018 following allegations that she had inhaled anaesthetic gasses whilst at work.

11. A further set of similar allegations were made in June 2019 and the Registrant was subject to a disciplinary process as a result.

12. The allegations investigated by the Trust arose after colleagues of the Registrant reported suspicions that the Registrant had been inhaling the anaesthetic gases used on patients.

Witnesses

13. The witnesses in the case are as follows;

1) AHS, Complainant

2) WH, Investigating Officer

3) RL, Assistant Investigating Officer

4) JB, Witness to incident in April 2018,

5) MV, Witness to incident in June 2019,

6) AL, ODP.

Evidence

14. The Panel read the amended HCPC hearing bundle and the written statements provided on behalf of the Registrant.

15. The HCPC called all of the witnesses listed in paragraph 13 above, to give oral evidence.

AHS

16. AHS confirmed the content of her witness statement was true to the best of her knowledge and belief. AHS confirmed that her current role is director of nursing for operations. In respect of how she became aware of the allegations she stated she was informed through the Datix incident reporting system and probably via the matron for the area. AHS confirmed that GB was chosen as an investigating officer because she was the matron at the time of the critical care unit and worked very closely alongside anaesthetists. She confirmed however that GB did not have operational experience of anaesthetic machines. In respect of 16 June 2019, she confirmed she appointed WH as investigating officer.

17. In respect of the disciplinary hearing held by the Trust, she confirmed that AN was the HR manager who presented the Trust disciplinary case. She stated AN did not have a clinical background, so it was probably difficult for her to answer some of the clinical related questions. AHS confirmed that she asked a question about the Registrant’s sickness during the disciplinary hearing because she was concerned about her being at work whilst unwell.

18. AHS confirmed that she had no knowledge or expertise of the workings of an anaesthetic machine. She confirmed assessing what the correct test was for carbon dioxide on an anaesthetic machine was outside of her scope of knowledge.

19. In cross examination AHS was asked about a grievance submitted against WH, she stated she recalled this. She was asked whether it was inappropriate for a person to continue an investigation if there was a grievance outstanding. She confirmed ordinarily it would be.

20. AHS confirmed that she was not a witness to the allegations and that her statement was based on what had been reported to her. AHS confirmed she would not be able to tell the Panel how the gases were switched on and off.

21. AHS confirmed that she was not in the position to disagree with JT (acting director of operations planned care) that the fact of alarms going off, does not indicate whether or not nitrous oxide is in use.

22. It was put to AHS that a criticism was made during the investigation of the lack of detail that was included in the investigation report about how the machines work. AHS was asked if this was WH’s responsibility and she confirmed it was. AHS confirmed that there were a number of reasons that alarms went off in theatre. AHS confirmed that the incidents occurred in the maternity theatres. At the time there were two theatres so each would have an anaesthetic machine in them. AHS confirmed that there were a number of machines and a number of noises within the theatre. In respect of the disciplinary hearing, she was unable to confirm when the Registrant submitted her grievance.

23. In re-examination AHS confirmed she did not have any knowledge of the workings of an anaesthetic machine. She confirmed that she could not agree or disagree with the views expressed by JT.

24. A further question was asked of AHS, and she confirmed that JT was a consultant anaesthetist.

WH (appointed as investigating officer for 16 June 2019)

25. WH confirmed the content of her witness statement. In respect of how she found out about the allegations, she stated, “the anaesthetist either e-mailed me or spoke to me, and I cannot remember which it was, about the incident and I then followed that up and spoke to her in more detail.” WH was asked about her knowledge of how an anaesthetics machine works she stated it was limited. She stated “I am not an anaesthetic nurse. I am a scrub nurse by background, so I have got a limited knowledge of how an anaesthetic machine works”.

26. WH was asked about the Registrant’s interview she stated “she had no recollection of the alarm going off on the machine or the anaesthetic gases being on”. WH was asked if the Registrant gave an explanation for being near the machines, she stated “She said that that was normal for her. She often sat at the anaesthetic machine during her down time”.

27. WH was asked about the alarms on the machine she stated “from my understanding the alarm will go off, if the anaesthetic gases are turned off or go off for any reason the machine will alarm. It is like a failsafe, if you like, so that if a patient is under anaesthetic and those gases stop then the alarm goes off to notify the anaesthetist.”

28. WH was asked about her interview with MV, she stated she was “very calm... She was very clear about what she had witnessed. She was also anxious that she wanted to support Ms Jones. This was not about getting Ms Jones into trouble, this was about being concerned for Ms Jones and her state of health, if you like, her state of wellbeing, particularly the fact that Ms Jones was pregnant at the time.”

29. WH confirmed that she was provided with information by West Yorkshire Police in respect of the effects of nitrous oxide. She confirmed that she was absent from work when the Registrant’s disciplinary hearing went ahead.

30. WH was asked why her investigation report did not include details on how the machines worked she stated, “we felt that it was not necessary given that the anaesthetist and the ODP were both aware of how that worked, and the investigation was based on what had been witnessed, not specifically about how the anaesthetic machine worked but what the anaesthetist had witnessed”.

31. In cross examination WH was asked about a grievance brought against her by the Registrant. She stated she was not aware of the grievance, and it had not been discussed with her. She confirmed that she had not been told whether she should or should not present the case against the Registrant at the disciplinary hearing and reiterated that she did not attend because she was unwell.

32. WH confirmed her investigation took 12 months. It was put to her that this was an inordinate amount of time, she stated “yes, there were number of things and again I cannot recall the dates. The investigation did not start immediately following the allegations in June and I think looking at the dates of the meetings that we held with Ms Jones and MV, they were not held until September and October. I know that I was not appointed as Investigating Officer immediately, there was some delay in that, and there were then some further delays partly because of COVID so obviously things changed dramatically in the early part of 2020. All our priorities changed and whilst that is not an excuse it is a reality, so that certainly had some impact. Ms Jones went on maternity leave.”

33. WH confirmed that the Registrant was subject to restrictions during the investigation. WH confirmed that she wrote the management report but had not seen the whole hearing report, as she was not at the hearing.

34. WH’s evidence was paused on the first day of the hearing, and due to legal argument (see Appendix 1) and WH’s availability she was recalled on the sixth day of the hearing.

35. On the sixth day of the hearing, it was put to WH that on the 16 June 2019, there were a number of people who could have walked into the theatre where the Registrant was sitting. WH stated there would have been other people on the labour ward who could have entered the theatre. WH confirmed that there would have been midwives, nurses and various members of the medical teams. WH confirmed that no one else raised concerns about the Registrant’s behaviour.

36. It was put to WH that she did not have any experience in anaesthetic machines. WH stated “I am not an ODP, so I do not use the anaesthetic machine as part of my role in theatre, no. We did speak to -- myself and AN did speak to SC, the consultant anaesthetist. We did not include all the detail in the report because we did not feel that that was necessary, but we did have a conversation with a consultant anaesthetist just to clarify what MV had said to us was accurate.”

37. WH confirmed that a record of this conversation was not in her report. WH could not recall the exact date of the conversations.

38. WH was asked whether she disagreed with the view of JT a consultant anaesthetist she stated “I cannot argue with him as I am not an anaesthetist and I am not an ODP. As I say, the information that we received from a consultant anaesthetist was slightly different to that and that the alarms would go off if nitrous oxide was being used and was then turned off. I do not think JT had actually said that in so many words. In the first part of that he said about checking the system and alarms, he has not actually said that it would not alarm if nitrous oxide went off whilst in use.”

39. WH was asked about whether alarm functionality was interrogated. WH stated “we did not check it specifically, but neither were there any reports from subsequent days in that theatre to say that there had been an issue with the alarm.” WH confirmed she did not check the machine.

40. It was put to WH that she did not get a statement from anybody at the time as to how the particular machine worked or the different circumstances in which it might alarm.

41. It was put to WH that her report was wrong and MV had no concerns about the Registrant’s ability to practice on the day in question. WH responded “In her investigation she mentioned that she had spoken to the registrar, who asked if she thought she was safe or unsafe, and she said that she felt that as she was only undoing packs and positioning the lady for an epidural, that she had been safe. She also says in her statement that she had offered to swap her with another ODP, but Ms Jones did not want that to happen.”

42. WH agreed that MV did not say she was concerned about the Registrant doing her job. WH agreed that the Registrant assisted with a c-section towards the end of her shift. WH stated “she had asked Ms Jones about swapping her with someone because she was concerned about her.”

43. WH agreed that MV had not specifically said that the Registrant was unable to perform the role. It was put to WH that she had already made her mind up during the investigations about what had occurred. WH stated “No, I had not already made up my mind. This was brought to me, and we investigated it and we felt that it was appropriate for it to be taken to a hearing and that was the recommendation that we made in the report. It was done following those conversations.”

44. There was no re-examination of WH, and the Panel had no questions for her.

45. MV confirmed the content of her witness statement. The Panel also noted the contents of her email dated 20 June 2019 (Exhibit 6), which the Panel produce in full below:

“Dear [WH],

After our earlier meeting, here is my account of what happened on Sunday 16th of June on Labour Ward.

It was a quiet day and after taking over a C-section that was on the table there was nothing much going on. I didn't see [the Registrant] at all after the case finished but knew she was sitting in theatres.

In the afternoon I went to ask for her help with an epidural and walked into the main theatre. She wasn't in there but I did hear noise from the second theatre and walked through to there. [The Registrant] was sitting by the anaesthetic machine and had tears in her eyes. Whilst I was trying to establish what was going on I saw that both the oxygen and the nitrous were turned on. Whilst I was talking to her the ventilator alarm also started going off like it does when you stop using the entonox via the anaesthetic machine. Because she was upset I didn't mention it. She was very jittery whether that was because of her being upset or because of the effects of the entonox. We did the epidural and she went back to theatre. When I asked her for help with another epidural, a similar situation happened. Again she was jittery.

A bit later I went to check up on her. She was again sitting by the anaesthetic machine. The circle circuit was not connected to a mask or filter and was pointing at her face. By the time I had walked over through theatres and I could see her, only the oxygen was on. Again, the ventilator alarm was going off. I asked if she was ok, and she assured me that she was. She came out of theatres after I said it would be good to see other people. She was again jittery. She made a cup of tea and went back into theatres.

The next time I saw her sit by the machine, the entonox was not fully off (maybe set around 1-2 l/min) as it had been before. The oxygen was still running. I think this was the time when I directly asked her about what I had seen (this was following a discussion with my SpR [MG]). She denied having used the entonox but became very apologetic. She repeatedly apologised for a few minutes. I offered her to see if one of the main site ODPs would swap with her for the rest of the day but she declined the offer. The next time I saw her was for a C-section. I was not the person informing her of this. There were a good 15-20 minutes between knowing about the case and the patient actually arriving. The only thing I can say here, is that I heard the ventilator alarm being reset in the other theatre whilst I was getting ready, just before she appeared. She was still very quiet but not as jittery as she had been before.

I hope this helps and that the meeting with [the Registrant] today went ok.

Best wishes,

[MV]”

46. MV was asked about the events on 16 June 2019 she stated, “I think a labour was happening when we first came on for handover about 8 o’clock in the morning, that we then took off the table back to the ward and then not much happened until after lunch when I was asked to do an epidural for a lady in labour. As a procedure I asked for the ODP Ms. Jones to come and help to open with the packs, just to have an extra pair of hands available in the room because these happen in the rooms rather than in theatre. I remember walking in to find Ms Jones in the theatre complex. I walked into the main theatre that we usually use, which is theatre one, where she was not, but heard noises through to the other theatre so walked through there. This is where I found Ms. Jones sitting by the anaesthetic machines. I noticed at that point (a) that she was quite upset and secondly I noticed that the anaesthetic machine started alarming as I was walking into that theatre, which drew my attention towards the anaesthetic machine and that is when I saw that both the oxygen and the nitrous oxide were turned on. The anaesthetic machine has got some columns with some bobbins that flowed up and down within the columns, so when they are at the bottom everything is turned off and then the higher they go the more know is coming through so they would have been up. I cannot recall exactly at what level they were, but I know they were not right at the bottom.”

47. MV confirmed she observed this from 3-4 metres away. MV stated it is something she was tuned into because she looked at the machines all day long and she confirmed it was visible from the distance she was at.

48. MV was asked about her reactions she stated “because Ms Jones was upset I dealt with that initially and I almost did not want to believe that they (the gases) were on and hence dealt with her first. It was only when the same thing happened again at a later stage that I started believing that I was actually seeing what I was seeing because it is not really something you want to believe when you see it.”

49. MV was asked about the second time this occurred, she said there was little detail about the second event that she recalls but went on to describe the third event. She stated, “This is the one where I did not actually go in to ask her to help with anything, but it was the time when I just asked to see how she was, having had the two previous events where she appeared a bit jittery, just to check up on her.”

50. MV was asked to describe what she saw. She stated “Again, when I walked in she was by the anaesthetic machine and the thing I noted then particularly was that the circle system, which is the tubing that carries the anaesthetic gases to the patient and is connected to a filter and a mask, ready to be used, because especially on labour wards they are really used for true emergencies. You want everything ready to be used. At this point in time neither the filter nor the mask was attached to the circle system and the opening of it was pointing towards her face, lying across the anaesthetic machine. I then, just because of what happened before, looked at the gases and at that point only the oxygen was on, so on that time I did not see the nitrous being on but only the oxygen, but again the ventilator alarm that had previously alerted me to looking at the machine was again going off just like it had been the previous times.”

51. MV was asked about the importance of the mask and filter, she confirmed “the filter and the mask are there for the patient. You do not want to transmit any germs to the patient when you use them, so they get changed for every single patient. So, the fact that they have been taken off makes me think that there is a reason to be taken off. Normally you would not take them off in between patients once it is set up because you want it ready to go.” She stated it “made me think that somebody would want to use the machine for themselves or for other reasons rather than for a patient”. MV was asked if it could have been changed because a test was underway she confirmed that it did not look like that to her. MV stated “I do not think there would be reason for Ms Jones to stop what she was doing just because I walked in. She would have just continued doing the process because she was in the process of checking a machine and then she would have just continued doing what she was doing.”

52. MV stated “I have watched many many ODPs checking machines and that did not look like the way ODPs normally behave when they check machines.” MV was asked about what she did next she stated “I basically discussed what happened with my registrar. At the time I was quite a junior anaesthetist so just to kind of share my thoughts about what was happening. So, I speak to the main registrar, who is Bradford based in the other building because maternity is a completely separate building. So, I called her and just discussed it with her. She basically asked me to ask Ms. Jones directly about what I had seen and that was the next time that I had walked into theatre to find her by the anaesthetic machine.”

53. MV described another incident, also on 16 June 2019, that she saw the Registrant by the machine, she described seeing both the oxygen and the nitrous running. She stated she asked the Registrant about this, and the Registrant apologised profusely.

54. MV was asked what was going through her mind she stated “To me every time I walked in she was jittery in some way, shape or form, which again I can only speculate as to why she was jittery, but she was definitely jittery. Each time she is sitting by the anaesthetic machine, which was not necessarily where ODPs normally sit when there is not much going on, and the fact that the flow meter levels had changed between the various events showed that definitely they were being turned in between the events when I was there. To me the logical conclusion was that she was using the Entonox.”

55. MV explained she reported matters via an email (Exhibit 6). She stated she could not clearly remember why she used email but thought she had been advised to email WH by a consultant.

56. MV explained the workings of the machines she stated 50/50 was the ratio for Entonox. She stated “The anaesthetic machine itself does not have to give 50/50 so you can give oxygen without the nitrous. You cannot give nitrous without oxygen because that is a safety mechanism within the machine. That means that you cannot give nitrous which would kill somebody if it was used without oxygen. So as soon as you turn the nitrous, the oxygen will automatically come on to protect the patient…you can run for example the oxygen at 10 litres and the nitrous at 2 litres, so a much much lower dose, and that would be fine. You do not have to have it set exactly the same level necessarily but to be truly Entonox it would have to be 50/50, so exactly the same level.” MV went on to describe the machine from a photograph.

57. MV was asked about CO2 checks and stated “That check, you do not normally use the actual circle system. So, CO2 has a separate line; that is a very thin, see-through line that attaches to the filter once the filter is on the end. It comes from a different area because it takes a little bit of air or gases away from the patient into a different part of the machine where it then gets analysed and a CO2 trace gets given, so it tells us how much CO2 the patient is breathing out and in. On that image you can just make out the CO2 line itself, which is dangling from the higher monitor, so the one that is on top of the machine downwards, and then curls at the bottom.”

58. MV was asked about testing the line and she stated, “You would unscrew it from the filter and then go straight into the CO2 line because you do not want to contaminate the filter that it attaches to, which is obviously the filter that would get used for the patient afterwards.”

59. In respect of the ventilator alarm MV stated “The purpose of it is to alert the anaesthetist that something is going wrong with ventilation of the patient, so either that the patient has stop [sic] breathing or that they are not breathing enough or that the machine is working too hard to ventilate the patient, so the pressures are too high. That there is a leak, so if things become disconnected it would alarm. So, there are all sorts [sic] things that basically alert that something has changed and there is a problem with the ventilation of the patient.” MV stated “The alarm only goes off when there is a change, something is different. So, for example, if the patient is connected and you have got air flowing and gases flowing and nothing changes, the patient is very stable, the alarm will not go off. It is there as a safety to alert us to something else happening, whether that is a change in the way the patient is breathing, or the lungs are working, or whether there is a leak, so something has happened. So, the fact that it was going off at that point in time means that the gases would have been flowing. The machine would not have been on standby just before I walked in because otherwise the alarm would not be going off if it had been on standby and thereby not in use.”

60. In respect of the reason for the alarm going off MV stated “This alarm is specific to the ventilator and thereby the only way that it would alarm is if there is actually something happening with the ventilation aspect of the machine rather than the monitoring of the patient, if that makes sense.” MV confirmed that the air flow or air pressure in the system has to change for the alarm to go off.

61. MV was taken to the comments made by JT, about there not being an alarm if the gases are on and in use, or not in use. MV stated “…the ventilator would not know to alarm because it has not been triggered to the air movement. All it does is that gas is flowing into the machine but there is no air movement at the other end, which is why the alarm would not go off. So, I think what he is referring to is that you could turn the oxygen, not touch the circle system, not touch the ventilator and the alarm would not go off until either a patient breathes on there or the ventilator is actively turned on to thereby create back and forth movement of the air.”

62. MV stated the alarm determines that gases are flowing but it does not determine what kind of gases are flowing. MV was asked if the alarm went off if the circuit was hit by something, she stated if the machine was on standby this should not happen. MV confirmed that because the theatres had to be ready for an emergency, the circle circuit should not be left without anything attached.

63. MV was cross examined. She confirmed that she did two epidurals with the Registrant on the day in question. She confirmed she also did a caesarean section with the Registrant at the end of the day. She stated the epidurals were “plain epidurals they happen in the patient’s room. They do not happen in theatre… Whereas the caesarean section… I recall it being a spinal anaesthetic at the time."

64. With regard to the Registrant’s role during the procedure, MV described that she would open the sterile packs so that she could get the sterile parts out of the unsterile packaging. MV was asked about complications of the procedure, she was asked about a high block and explained that this could require the patient being intubated. In those circumstances MV agreed that the ODP’s role would be to provide the drugs from the drugs cabinet, by unlocking it. MV explained they would also assist with putting the patient to sleep. MV also confirmed that the ODP assisted with positioning and cannulation. MV confirmed they would assist with giving blood if someone had bled too much.

65. It was put to MV that given the role performed by an ODP a doctor would not let them assist if they had concerns about their practice. It was put to her that therefore MV did not have concerns about the Registrant’s practice. MV responded “I think there are two elements to that from my perspective. One of them is the fact that the Entonox does wear off fairly quickly because as soon as you stop using it, it wears off. It is not a long-acting drug. I think the other element that you are probably referring to is that I was quite a junior anaesthetist at the time, and I am not sure I would respond the same way nowadays that I would have done back then. That is something that is just a reflection of me having more experience nowadays.”

66. MV confirmed the reactions to Entonox varied differently between people. MV confirmed that she described the Registrant as jittery. It was put to MV that she did not observe any outward signs of Entonox misuse other than what she describes as being ‘jittery’. MV agreed.

67. MV was asked about the Registrant’s mouth being on the circuit, she stated “I never actively saw her inhale, so having her mouth on to a mouthpiece, or a mask or anything. This is purely based on where the circles were pointing at and the fact that the nitrous was turned on, which should not normally ever be on.” MV stated “I noticed how the circle system was pointing towards her face, which again in its own right is a strange way of having it positioned.” MV confirmed the most effective way to inhale gases is via the mouthpiece or mask. She stated without a mask or mouthpiece it is less specific as to where exactly it goes, because it will mix with room air at that point. MV confirmed that an ODP would have access to the masks and mouthpieces.

68. With regard to the layout of the theatres MV explained that the theatres had since been refurbished but at the relevant time there were two theatres next to each other but between them they had several connecting rooms or corridors. MV stated “there was a scrub sink where you can just walk straight through where there were no doors either way, so it effectively was a continuation of both of those rooms. There was a prep room and then a sluice… The main theatre we used was the one that was closer to the corridor. We used to walk in through there normally and then just -- if we had to go to the second theatre, just walk straight through but the patient would enter from what I call the back door, which is actually the main entrance door to that second theatre, just that we used to just walk from the side because it was quicker rather than anything else.”

69. MV confirmed that there was more than one way to enter the theatre that the Registrant was found in, and that there would have been midwives around. MV confirmed there would have been several members of the obstetrics team and there would have been some healthcare assistants. MV confirmed that the doors were not locked.

70. MV stated she had worked on the labour ward for six months. She stated she was not aware of a previous incident involving allegations of the Registrant using Entonox.

71. MV confirmed that there were many machines with different alarms. In respect of the first incident on 16 June 2019, she confirmed that she walked through to see the Registrant. In respect of the alarm, she stated this went off during her conversation with the Registrant. She confirmed the Registrant was crying.

72. MV was asked about leaving a machine on standby and the different ways in which ODPs achieve this. MV stated “I would say whilst there probably is one difference that might spring to mind, generally speaking everything is very standardised when it gets to machines. The checks are very standardised, the way the machine is set up is very standardised and there is -- every Trust is obviously slightly different but usually there is a way that a machine should be left ready to be used as a standardised way. The only way where I would say that this is probably a slight difference is something that we were talking about already about the bag being attached with a ventilator turned on as a standard leaving it, so some ODPs leave them on just running just so that they know there is no leak and just leave that running, whereas others turn that back off, put it back on standby, put the mask back on and leave it. That is the only thing that I would say that is probably a slight difference but otherwise it is usually very standardised when it gets to the machine.”

73. MV confirmed that some ODPs leave machines on standby mode; MV confirmed that this is when the oxygen and air is turned so there is airflow within the machine.

74. MV was asked if a bag in the machines circuit, when the machine was on ventilator mode, was pressed, whether the change in air flow would make an alarm go off. MV stated “when the ventilator mode is on the bag at the bottom is completely taken out of the circuit. Behind the green bag that is lying on top of the anaesthetic machine you can see some bellows and they effectively take over as the second bag. That is the switching between the two sides. So, on the ventilator mode it is only the bag on the top end, of the bellow behind it that moves. The other one is taken out of the circuit.”

75. MV was asked about changes in the system causing the alarm to go off she stated “The change would have to be almost a direction. So just by turning for example the oxygen higher or lower the alarm would not go off. It would have to be the actual movement of the air inside it that would change.” MV confirmed that a leak or a tube being disconnected from the machine could also make the alarm go off.

76. MV stated she did not see the bag attached to the machine. She stated, “that is the big difference because if the bag is not attached then the ventilator mode does not work anymore because there is no effective lung so there is no continuous circuit to even create anything, which is why I am saying that something else must have changed because to me I never saw a bag attached being used as if there is a fake lung attached to the anaesthetic machine.”

77. MV stated that the bag coming off the machine would cause a different kind of alarm because the whole system would completely lose all form of drive. MV was asked about alarms in ventilator mode. She stated “The ventilator mode would not really be switched on as such. There are three states, effectively, for the anaesthetic machine if you think of it. Just because the ventilator is off does not mean that the machine is on standby. Standby is a whole resetting back -- not turning off because they are not turned off, they are on standby, because a patient might not need to be ventilated but they can be breathing spontaneously, in which case you do not need a ventilator running but there is still air flow going through it and all the alarms are still functioning. That is a different state. If the ventilator was truly on, with the bellows going up and down, it would be alarming continuously if there is no bag attached to it. If the bag is not attached but there is just flow going through it, so without the ventilator mode, it does not necessarily mean that it is on standby so it could still be active without the ventilator being on”.

78. MV stated if a bag was not attached the alarm would go off continuously depending on the setting. MV stated “If the ventilator is truly switched on and there is no bag it would be a pretty continuous alarm because at that point the machine recognises that it is ventilating a room and that does not work. If the bag is disconnected and a patient was spontaneously breathing, which means that the bellows are out of the picture, the alarms suddenly sound different so they are more intermittent alarms.”

79. MV confirmed that there are a number of ways an alarm could go off on the machine and that this could have applied on all three occasions. MV was asked about a time that she saw only the oxygen flowing on the machine when she spoke to the Registrant. MV stated “all I knew was that the nitrous was turned off by the time I was in theatres, and I could see her. I do not know what happened before that.”

80. MV was asked about a fourth incident, she stated she saw the nitrous was at 1 to 2 litres, and she confirmed that this was very low, she confirmed she was not able to tell the ratio of oxygen to nitrous at this stage. She confirmed it would have less of an effect than if it was at 50/50 (Entonox) but stated it would still have an effect. MV confirmed that she didn’t see the Registrant with a mask.

81. In respect of the first incident, MV confirmed that the bobbins were up. She confirmed that they were halfway up, but she could not read the numbers. MV confirmed she did not specify the ratio in her written account or later in interview.

82. MV confirmed that she knew where the Registrant was during the day but could not confirm whether the Registrant had told her where she was. MV agreed other ODPs would sit in the theatres if it was quiet. MV confirmed that there was one occasion when she entered the room when the Registrant was sat down and on other occasions she was moving about. MV stated that when she saw the Registrant sitting the circuit was pointing to her face. She stated the nitrous was off on that occasion.

83. MV could not comment whether the Registrant had a laptop. It was put to MV that she made an assumption that the Registrant was inhaling Entonox. MV stated “I think what I can say is that I never saw her physically having a mouthpiece in her mouth or a mask on her face, but the fact that the nitrous was switched on, the way the setup of the machines was every single time when I saw, from how I reacted at the time, it was enough to make me suspicious that something was not right because the nitrous should just not be on.” MV stated “it was the combination of everything that had led up to that moment. It was not a single event that made me suspicious of something not being right. It was the accumulation of them” MV agreed that she did not see the Registrant sitting with a mask on her face or a mouthpiece in her mouth, using the anaesthetic gases.

84. In re-examination MV confirmed that she didn’t notice if the machine was on ventilator mode when she found the Registrant on the numerous occasions.

85. MV was asked questions by the Panel. MV stated that it was the same theatre that she saw the Registrant in on the several occasions, when she walked in and saw the Registrant next to the anaesthetic machine. MV confirmed the machines are checked twice a day. MV was asked if the times that she walked in on the Registrant she could have been performing a machine check she stated “I would not say so. Normally there should be admin first thing in the morning. Sometimes obviously on labour ward that can get delayed if there is a lot going on, if there is a case on the table, but first time I saw her after the morning case was kind of after lunchtime, so the whole morning had elapsed, during which time that check should have happened before that.”

86. MV was asked to explain how to test the CO2 line or the capnography. She stated “normally the CO2 line gets checked by blowing directly into the CO2 sampling line, which is a thin line that runs separate to the circle system and then gets attached to the filter at the patient end. You disconnect it on that end, blow in to make sure that a CO2 trace appears on the screen and then you reconnect it to the filter.” MV could not recall if the vital monitoring screen was on when she walked in on the Registrant.

87. MV explained how a ventilator worked and confirmed that the ventilator creates positive pressure which forces air out through the circle system. MV confirmed it is possible to inhale anaesthetic gases through the circle system without a mask or a mouthpiece. MV confirmed this would cause a reduction in symptoms or side-effects that you might see from Entonox. MV confirmed nausea was a symptom of Entonox.

88. MV confirmed oxygen was not an anaesthetic gas. MV was asked how obvious the bobbins on the machine are, she stated “I think they are fairly obvious because it is something that, it is one of the things that we look at all day long and thereby it is something we are quite tuned into at looking. There are relatively big bobbins in those columns, and I find them fairly obvious at a relative distance”.

89. MV was asked whether the alarms went off on all of the occasions that she had concerns about the Registrant’s behaviour. MV confirmed that they did. She could not confirm if they were the same alarm sound on each occasion.

90. MV was asked about nitrous oxide not being allowed to run on its own, she stated, “They have a safety mechanism built in, it is called the hypoxic guard, which means that if you just turn the dial for the nitrous oxide, oxygen automatically comes on to deliver a safe amount of oxygen alongside and thereby not cause a hypoxic mixture.” MV was asked about the ratio of oxygen to nitrous oxide she stated, “even if you had 25% nitrous oxide and 75% oxygen there would still be an effect from the nitrous oxide.” MV clarified that when Entonox is mentioned she meant nitrous oxide.

91. In further cross-examination by Ms Shah, MV confirmed that strictly speaking the only anaesthetic gas relating to the case was a combination of nitrous oxide and oxygen. MV confirmed 50/50 oxygen and nitrous oxide is called Entonox. MV confirmed a different combination would still have an effect. MV confirmed not having a mask or filter would lower the effect because the gases would mix with the air. MV stated that she did not know the ratio of oxygen when she saw the nitrous oxide running. MV was asked about the Registrant’s position she stated, “did write in the e-mails she was always by the anaesthetic machine, so whilst I say that is the only time she was sitting down, the way I interpret my statement now is she was at the other times getting up or standing up by the anaesthetic machine rather than sitting down necessarily.”

92. MV was asked if anyone else would have turned off the nitrous oxide she stated “I do not think I did, no. I do not think anybody else would have because apart from the ODP and myself nobody would touch the anaesthetic machines.”

93. MV was asked in further re-examination by Ms Crine about the bobbins on the occasion when she saw them at halfway. She stated, “I should probably say is not going to be halfway between zero and 15. It is a little bit confusing but the spacing changes just because of the physics of it, so halfway is probably 4 or 5 litres rather than, as you would expect, 7 or 8 on the 15.”

94. JB confirmed the content of her witness statement. The Panel also noted the contents of the Datix (risk management information system) form dated 3 April 2018, submitted 17:47, by JB (Exhibit 11). This related to JB’s concerns following events that took place on 2 April 2018. The Panel produce this Datix in full below:

“Approximately 3pm Acute and trauma theatre had both finished early. Both theatres 3 and 4 were stocked and clean. I and others went for coffee. OD? said they had ESR to do, they had a score around 50%, and they were going to do this in theatre. We asked if they wanted a coffee and they replied they'd be along in a minute. ODP never joined us. At approximately 6pm, I went to check the 2 theatres that they were clean and tidy for the night staff. The bins had been done I'm not sure if they'd been done by ODP. I found ODP in theatre 3 sat over the anaesthetic machine, their head was close to the circuit and I noted that both oxygen (approx. 6L) and Nitrous (approx. l0L) were switch on. I asked what you are doing. They switched the gases off, and replied that they were trying to work something out, I asked if it was something I could help with, they said no I need to speak to someone and took a call. I cannot recall if they phoned someone or the phone rang. I left them to their call. Taking time to digest what I had seen, I went back to theatre 3 and they had finished their call, I asked what they'd been doing and said rt had looked iffy. They said, they had been changing the circuits and was testing the capnograph. I explained that you should not test the capnograph by breathing into it and explained why nc1t. I think we both then left theatre during this conversation, I returned to theatre 2 to help clear up. At approximately 7.30pm the night staff arrived and we had a small conversation, there was no sign of ODP so I went to find them, to let them go home. I found them in theatre 3 sat close to the anaesthetic machine again, not as close as before but both gasses on as before. I asked what are you playing at and I switched the Nitrous off myself this time. ODP said they were doing nothlng, I pointed out the nitrous was on again, they said they hadn't switched it on and that they didn't know how it had happened. I asked who had/would switch it on, they had no answer.

95. JB confirmed on 2 April 2018 she was working in acute theatres. She stated it was very quiet and there was nobody to ‘operate on’, so they were sat having coffee and ‘chilling out’. She stated the Registrant was doing ESR learning in theatre. She stated this was around 3pm and she next saw the Registrant around 6.30pm. She stated “I walked into theatre. She was sat in front of the anaesthetic machine. The nitrous was clearly on. It was on high. I think at the time I said 10 litres. Her head was very close to the end of the circuit.”

96. JB stated she did not expect the Registrant to be near the machine and expected her to be on the computer which was behind the machine. JB confirmed the Registrant was sat down and she had some paperwork either on her knee or on the machine. JB stated that she believed the Registrant was bent over with her head low. JB stated she did not think the mask and filter were attached.

97. JB confirmed in her Datix that she recalled the oxygen was at 6 litres and the nitrous at 10 litres. She confirmed this was very high. JB further confirmed that she could see the front of the machine and stated that she would not have expected the gases to be on at all. JB stated that it did not appear that the Registrant was doing a test on the machine. JB was asked why this was and she stated “Well, one of the tests is the oxygen failure, where you disconnect the oxygen pipeline and [watch] the bobbins fall. The pipeline was not disconnected so I would say it was not that. There is the hypoxic guard test. If you are following the manufacturer’s guidelines that says turn the nitrous oxide up to 9 litres and the oxygen should be on 3 litres, giving you a 21 to 30% ratio of gas. I did not feel that was -- I do not know but the bobbins were not at that point. How else do you check it? I think that is it actually. Just them two points should be on during the check.”

98. JB was asked when doing these tests whether a person would be stood up or sitting. JB stated “I would probably be standing up. I would probably, like most ODPs, rush through it. The hypoxic link test I probably would stand there with my hand on the knob, just turning it up as it reached its values. Then I would be turning it back down, but I would also have the tube occluded. There is a little plastic mould on the anaesthetic machine where you put the end of the circuit. I normally would have it on there, so I am not getting the gases”

99. JB was asked how the Registrant reacted when she entered the room, she stated “I would say nervous, a bit of a jump. I think on this first instance she switched the gases off so I would say she jumped a bit and switched the gases off.” JB stated “..I asked her what she was doing. She switched the gases off and said that she was trying to work something out and was shuffling her paper about. I asked her if there was something I could help her with. She said no, she needed to speak to somebody and made a phone call. I do not know if she phoned them, or they phoned her but she definitely then took a phone call. That is when I left the room and left her with the phone call”. JB stated she then went to speak to AL as she was in shock.

100. JB stated after speaking to AL she went back into theatre. She stated “asked her [the Registrant] what she had been doing and said I thought that it looked a bit iffy. She said that she had been changing the circuits and was doing a capnograph test.”

101. In respect of the capnograph test JB stated she did not complete it because the machine self-calibrates. She stated “I think every test that we do has a scientific value and there is no measurement for my CO2 levels compared to anybody else’s, so I personally do not. I have spoken to the company because it has come up as a training issue amongst our learner ODPs, on whether you should or you should not. The company says that it is a personal preference. They are a bit on the fence on that. I personally do not but I know people will remove the capnograph from the circuit and blow into it, just to check that it is working.” JB confirmed the test took seconds.

102. JB stated “I think we had a conversation about why she should not test the capnograph in that manner and then I think we both left the theatre during this conversation. I think we both walked together out. I cannot say where [the Registrant] went to, but I returned to Theatre 2, which is where [AL] was, because that theatre was running late and I helped them clear up. I do not know where [the Registrant] went during that time. At 7.30 the night staff were arriving. I did not know where [the Registrant] was, so I went to find her to tell her to go home. I found her in theatre, sat close to the anaesthetic machine again, with both gases on as before. I asked her what she was playing at”.

103. JB stated that on the second occasion she thought the level of the gases, were at 10 litres for the nitrous oxide, but stated she did not document this. JB stated the Registrant was sat close to the machine and then stated the level would have been 6 and 10 litres respectively.

104. JB stated that she pointed out that the nitrous oxide was on and the Registrant said she had not switched it on and did not know how it had happened. JB stated she asked the Registrant who would have switched it on and there was no answer given by the Registrant. JB stated the Registrant seemed a bit vacant and spaced.

105. JB stated she told the Registrant they needed to do the drug count. JB confirmed that when the machines are checked the logbook is supposed to be signed. JB however stated that she herself frequently forgot to sign the book, and this was often forgotten.

106. JB was asked what she did after the shift she stated “I think I was probably discussing this with myself in the car and I think I tossed and turned all night. I think I was just trying to find a way of not having to report it, which I was clearly very unsuccessful at because the only conclusion I could come to is that I did have to report it in the morning.” JB confirmed she spoke to DW, the team leader in ENT at the time.

107. In cross examination JB was asked about the controlled drug checks. It was put to JB that on that occasion, it was the Registrant’s theatre, and she was the one counting the drugs, and JB was witnessing it. JB stated that she could not recall. She accepted her signature was in the section that the person witnessing would sign. JB confirmed that the drug checking occurred after the second incident.

108. It was put to JB that 10 litres would be a very high level of nitrous oxide to which she agreed. JB confirmed she was unclear about the ratio. JB’s previous account was put to her, and she stated “I am pretty certain that the nitrous oxide was up at the top.”

109. It was put to JB that if someone inhaled that level of nitrous oxide they would be unconscious. JB stated “she was not inhaling that on its own because the tube was not going in her mouth directly” it was put to JB that the Registrant would not have been able to do a drugs check to this JB responded “She was able to stand up and walk. She was talking.”

110. In respect of the first incident, JB said the Registrant took a call. She confirmed that she could not recall but thought the Registrant walked out of the room to take the call and then she went to speak to AL. In respect of whether the gases were turned off JB stated “I think the first time [the Registrant] turned them off. She turned them off as I entered the room.” JB stated “I think I was already in the room when she turned them off. I clearly saw it up at 10.” In respect of the first incident JB stated “I think in my Datix I have put that I turned them off, I think… Sorry, [the Registrant] turned them off. It was so long ago.” Upon further questioning JB stated “I do know that I turned them off the second time. I will have to go with I do not know who turned them off the first time.”

111. In respect of the second incident, JB confirmed that this was nearing the end of the shift. In respect of the theatres, JB agreed that theatre that had been used as a trauma theatre and had various bits of equipment that need to be cleaned. It was put to JB that the Registrant would be doing her checks to see if everything has been done properly before the night shift, JB agreed.

112. JB was asked about the hypoxic failsafe. It was put to JB that during a test the oxygen comes up automatically. JB also agreed when doing the test, the nitrous oxide would be on full. JB stated the manufacturer’s guidelines recommend taking it up to 9 litres. JB agreed there was a margin of error. JB was asked about having the gases on when checking for leaks, she stated “I would not have nitrous oxide on checking for leaks because it is not relevant. I would just put oxygen on for checking for leaks.” JB confirmed you would not have the gases on to change the circuit, she stated “if you change the circuits you would check for leaks, you would not check for the hypoxic unless you were doing a full check.”

113. JB was asked about when a full test was done she stated “If I check my machine first thing in the morning and then at some point I feel I have to change the circuit, I need to do a leak test but I do not need to do the full test so I am only changing -- if you follow the manufacturer’s guidelines it goes from the pipeline to the cylinders, all the way to the patient end. If all you are changing is the circuit then that is the bit that you have to check. It is the last bit of the process.”

114. It was put to JB that there was no consistency in respect of completing the logbook, and sometimes people would forget to complete it, JB agreed. It was put to JB that when she encountered the Registrant on the first occasion, she was doing a check of the machine. To this JB responded “I cannot say that she was doing a full check. I do not know.”

115. It was put to JB that if the Registrant was abusing anaesthetic gases. she would not have been capable of doing a drug store check. JB responded, “I honestly do not know”. It was put to JB that on the second occasion she had described that the Registrant had told her she was conducting a test, to this JB responded, “I think so the second time she did not know how it (the machine) had gotten switched on”.

116. It was put to JB that she had previously accepted the Registrant’s explanation of checking the machine but had concerns. JB confirmed this was correct she stated, “I think at that point I might have accepted that as an explanation, so yes.” JB confirmed the machine checking explanation was provided when she went back to talk to the Registrant.

117. JB explained the process of checking by stating “you put all the bobbins up, oxygen, air and nitrous oxide on. You put them all to the same level. I do not know if the manufacturers suggest a level, but I think…you just put them on 2 or 3 and then you disconnect the oxygen pipeline and you wait for the gases to run out. The point is that the nitrous oxide should finish before the oxygen and that the air should stay exactly where it is. Then when you plug it back in all the bobbins should come back to the start, to where they have been”.

118. JB confirmed there were two teams working, the obstetric team and the acute team. JB further confirmed the acute plastics team ran over their 6pm finish time. She confirmed more than 10 people were within the teams who could have come in and out of theatre. She confirmed that she was not aware of any other reports about the Registrant’s behaviour. JB also confirmed that she knew where the Registrant was in the theatre, as the Registrant had told her where she would be earlier in the day.

119. In re-examination JB was asked about the comments made to her when she spoke to the Registrant on the first occasion, she stated “I think she said something about there was something she was trying to work out. I asked if it was something I could help with and she said, no, she needed to speak to somebody.” JB confirmed that she went away and spoke to AL, she then returned to talk to the Registrant. She stated she “asked what she had been doing and said that it looked iffy. She (the Registrant) said that she had been changing the circuits and testing the capnograph.” JB confirmed that she had explained that it was probably not how she would test the capnograph.

120. JB was asked what was said during the second incident, she stated, “I think I said…“what are you doing” and she said she was doing nothing. I pointed out that the nitrous oxide was on again. She said that she had not switched it on, and she did not know how it had happened…Then I think I asked “who would have switched it on then?”

121. In further cross examination JB stated she thought that the comment about the checking of the machine occurred during the first incident. It was put to JB that the explanation of the Registrant was not just that she was changing the capnograph, she also explained that she was changing the circuits and was checking the machine as a whole. JB agreed with this.

122. JB was asked a question by the panel, she confirmed that she did not recall hearing any alarms. JB confirmed that there was no trace on the machine. She stated “Normally there is a trace on the machine, and it recognises either the patient breathing or the mechanic confidential action of the ventilator. If neither of those had happened it probably would not have alarmed.” JB confirmed that if the machine was in ventilator mode and the gases were switched off, the anaesthetic machine would alarm. She then stated “To be honest, I do not know. I think it alarms when the breathing stops.”

123. JB was unable to recall a text message referred to in the investigation notes. She confirmed the incidents occurred in theatre 3 which was run as a trauma theatre. JB confirmed theatre 4 was acutes. JB confirmed trauma finished early afternoon approximately 3pm. JB confirmed it was an unusually quiet day.

124. In respect of transferring theatres JB stated “Typically we would close Theatre 4 down, so that would involve a drug check, tidying round, making sure it was clean, ready for the cleaners to come in. Anything we did need to move, if we were expecting cases to come in we would move into Theatre 3…We would make 3 the acute theatre at whatever point trauma finished. We would have transferred things into Theatre 3.”

125. JB confirmed the Registrant was working on acutes as first ‘on’. In respect of her role, she stated “I would not have been working in either of the theatres particularly. My job was to carry the second on bleep so I could go to resus, maternity second theatre or indeed acute second theatre if that was the case, but there was nothing happening that day...” JB confirmed the Registrant would have been in theatre 4 at the start of the day and then swapped over when both theatres finished. JB stated “We would have made the acute theatre, Theatre 3 if everything is finished because Theatre 3 has better access for the recovery”.

126. JB was asked about the transfer of equipment she stated “I do not know that we would have to transfer anything because I think all the kit would be in there. Theatre 3 is set up as an acute theatre so everything that we need should be there.”

127. JB was asked about the Registrant’s interview in which she states, “I [the Registrant] headed back to Theatre 3 about 3.30/4-ish and then checked the anaesthetic machines and started cleaning down everything in there”. In response JB states “she said she was doing that then I cannot say yes or no really.”

128. JB was asked about the Registrant’s ESR learning, and when in the timeframe she would have been doing this, she stated “I cannot tell you in the scheme of things at what point I saw her. It might have been when she was coming back from her cigarette, but I said to her “are you coming for a drink with us” and she said, no, she had to do ESR learning. That is what I was going to believe”. JB was asked which theatre she had gone into to study, and she confirmed theatre 3.

129. JB was asked about the capnograph test and confirmed that most people would take the capnograph tube and just blow into it quickly. JB confirmed that you know if this is working because you get a trace on the monitor. JB was asked if she recalled the vital signs monitor being on and she stated that she could not recall. She stated she would have to go with the fact that it was switched on.

130. In further cross examination JB was asked to confirm that it was theatre 3 in which she saw the Registrant, she confirmed this was correct. It was put to JB that the Registrant was responsible for deciding what jobs she needed to do, and JB agreed. JB confirmed that she did not observe the Registrant throughout the day.

131. AL was called to give evidence and he adopted his witness statement as his evidence. He confirmed on 2 April 2018 he was running a plastics list as the anaesthetic assistant in Theatre 2 at the Trust. He stated, late in the afternoon, JB entered the anaesthetic room, completely out of character. Her mannerisms were of concern. He stated JB was pacing the room, mumbling to herself. He stated JB told him, after asking her several questions, that she had come across the Registrant leaning towards the circuit with nitrous oxide blowing towards her face. He confirmed that JB spoke to him past 5pm. AL was unable to confirm whether JB described the Registrant as sitting or standing.

132. AL was asked if he knew the quantity of nitrous oxide he stated “To confirm the sense, there was certainly a lot of -- there was enough nitrogen to be blowing through the circuit to cause alarm to JB. There is no reason for nitrous oxide to be blowing out of a circuit when it is not connected to anybody.”

133. AL stated “We had a conversation that [the Registrant] was checking the anaesthetic machine. I do not recall whether that was on her second visit when she went back or on the first time when she caught her doing it.” AL confirmed he had two conversations with JB.

134. AL recalled that he had a conversation with JB and stated the information the Registrant gave to JB was incorrect. AL stated the Registrant’s response that she was checking the machine would not mean that the circuit would be blowing nitrous oxide towards her face. He stated it is not part of the check.

135. AL was asked about checking the capnograph he stated “I was taught to separate the capnography line from the circuit, and it requires CO2 in order to provide a result. To achieve that you would blow down the CO2 trace, the line, and that would provide us with a reading. I would also check the integrity of that line to make sure there were no kinks, make sure it was also connected to the valve on the anaesthetic machine.” AL stated there is no reason for nitrous oxide to be blowing when conducting that test. In respect of whether the mask and filter would be attached when checking the CO2 AL stated, “If you were to blow with a filter and a mask connected you would be contaminating the filter and the mask, which would need replacing, …it is inefficient and a waste of funds.”

136. AL described a hypoxic guard check, which requires the nitrous oxide to be switched on. He stated that this test takes seconds and explained he would do the test standing. AL stated there would be no reason to have the end of the circuit toward your face.

137. AL was asked about alarms he stated “The alarm would sound if there was a change in the rate of ventilation, a change in pressure of the ventilation for example if there was a leak in the system. The ventilation pressures are pre-set by the anaesthetist with requirements for the specific patient and if that changes then the alarm will sound. As I say, I believe that to be for overpressure, increase or decrease in number of ventilation and a leak in the circuit.”

138. AL was asked to describe ventilator mode he stated as follows “The ventilation mode is when the patient is not spontaneously breathing, and it is present again determined by the specifics of the patient in order to ensure that they have the correct gaseous mixture to maintain anaesthesia and oxygenation of the patient. The patient is not breathing for themselves whilst the machine is in ventilation mode.” AL stated if the machine was in ventilator mode there should be a closed circuit. He stated if there was not a closed circuit the machine would alarm.

139. AL was cross examined. He confirmed that he did not see the Registrant at the anaesthetic machine so could not describe where she was sitting. He confirmed his evidence was based upon his conversation with JB. He confirmed he had no role in the internal investigation, bar being called as a witness. AL confirmed he was working in plastics and not acutes on the 2 April 2018.

140. It was put to AL that different ODPs do checks slightly differently. AL stated “Yes, ODPs do check different things in different orders. We all do it slightly differently although ultimately we follow the guidelines as set out by AAGBI and the manufacturer of the machine.”

141. AL confirmed that the nucleus theatres included acutes. AL was asked if there was a difference in the checking of the machines between different theatres. AL stated “No, I would disagree. As I say, we all followed the guidelines, the manufacturer guidelines, those set out by the AAGBI. The order that we do them would be different.” AL was asked if he had ever had an oversight to assess whether or not different ODPs in different theatre departments do the anaesthetic checks differently. He confirmed that he had not.

142. AL was asked about machine checking and stated, “I would hope that everybody would check the machine in the same way, just slightly different order is acceptable, but the outcome is the machine is safe.” AL confirmed that he had seen other ODPs checking anaesthetic machines. He stated the order of the checking of the machine may be different.

143. AL agreed that there are inconsistencies in respect of filling in the logbook. AL confirmed the person first on working in the theatre would be responsible for the drug keys.

144. AL was asked about the anaesthetic machines alarm and leaks in the system. AL confirmed a leak in the system would alarm. AL confirmed a break in the circuit, caused by a perforation in one of the tubes, would amount to a leak in the system, as would one of the bags attached to the machine “coming off”.

145. AL confirmed that during acutes the vitals monitoring machine is always on. AL was asked about the anaesthetic machine being left in ventilator mode. He stated “There is no reason for ventilation to be on. You may not enter for 12 to 18 hours, for example, in maternity. That is a long time to run a machine on the ventilation mode. There is no reason for it.” He stated “I never left the machine ventilating for long periods of time. Vital lines monitor, yes, machine on, switched on with a power supply ready to go because the checks were carried out in the morning or at the end of the evening between shift swaps, but not constantly ventilating so the bellows were moving up and down, inflating the green bag. That is then when -- so if you have the flows on too high or the APL valve which releases the pressure is incorrect and you leave the room, then you end up with a huge green bag that eventually will burst. So, in my experience I never left a machine ventilating, connected to a green bag for prolonged periods of time.”

146. AL confirmed he had been qualified for 7 years and worked in maternity once a week. AL confirmed that the soda lime would be checked during an anaesthetic machine check. AL confirmed that a hypoxic guard test would also be performed during a full check of the anaesthetic machine.

147. It was put to AL that a person would not be prevented from performing the checks whilst sitting in front of the machine. AL stated “I disagree. If you took the decision to do it sat down you would have to stand up to carry out several of the checks. There are moments where each check needs a time period before it is confirmed. You could sit down between each check, but you would have to continue to stand up and move around the machine.”

148. In respect of the hypoxic guard test, it was put to AL it was possible to perform this sitting. AL stated “It is possible, assuming your arms are long enough, the height of the chair and you are close enough to the machine. It is a very brief check.” AL confirmed that this check took seconds.

149. AL confirmed that no one else came to him to say that they had come across the Registrant in the theatre acting suspiciously or inhaling anaesthetic gases.

150. The Panel asked questions of AL. AL was asked where the recording of circuit changes were made. AL stated “that should be recorded in the book, on the day, with the time that it was changed. At Bradford we would usually change those on a Sunday or possibly a Friday interdepartmentally.” He confirmed there was an anaesthetic logbook.

151. AL was asked about a record of a circuit change on a Saturday, he was asked whether a log number would be shown if the circuit change was conducted. AL confirmed that this was correct.

152. In re-examination AL confirmed that although this should be completed there are examples of people not completing that book properly.

153. AL was asked by Ms Crine how often the circuit was changed he stated “I would change the circuit whenever it was contaminated, perforated. I would change the circuit weekly if it had not been contaminated or it had not been perforated, damaged in any way. We would change the circuit weekly.”

154. RL confirmed the content of her witness statement was true to the best of her knowledge and belief. RL was asked about discrepancies in how the ODPs conducted their tests and her recommendations of a review of the procedures. RL stated “This is in the main around how the capnograph itself was tested, so it was described to us by different witnesses… i.e. JB and by [the Registrant] and AL… they described it to be in different ways so this was a discrepancy there that we could not therefore establish that there was one, and one way only, to do. The other thing that there were discrepancies on is when tests had been carried out on anaesthetic machines, whether or not that was then signed and dated to say that check had been carried out.”

155. RL stated she was not privy to the outcome or the recommendations. RL was asked about the investigation and a text that she had been shown by JB sent from the Registrant. RL stated “I remember certainly having seen it as I have read through the transcript. I do not recall that we ever did receive that piece of evidence.”

156. In cross examination RL confirmed that the logbook was not always signed after checks were completed. RL confirmed that there might have been discrepancies between different theatres in respect of machine checks.

The Registrant

157. The Registrant gave evidence. She confirmed the content of her written representations were true to the best of her knowledge and belief. The Registrant confirmed that she had worked at the Trust since 2015. She confirmed that there had been no other referrals in respect of her practice.

158. In respect of JB, the Registrant explained that she worked with her, but they were not friends outside of work. The Registrant confirmed on the day in question she would have been responsible for the acute patients and JB was ‘second on’ and “carrying the bleep and covering breaks”.

159. In respect of the Registrant’s role, she stated she was responsible for the checking of the controlled drugs and making sure the acute theatre was stocked. She made sure all fluids and drugs were in date and the theatre was clean and stocked up. She checked all the equipment and maintained the drug keys. She would ensure the anaesthetic machine was ready to go.

160. The Registrant stated that acute anaesthetic machines needed to be ready at all times as patients could come through the door and the theatre needed to be ready for use. The Registrant confirmed that the morning theatre 4 transferred to theatre 3 once the trauma theatre was finished. She confirmed therefore that theatre 3 was trauma in the morning and then acutes thereafter. The Registrant explained the difference between a trauma and an acute theatre.

161. The Registrant was asked to confirm her practice in respect of getting a theatre ready to transfer from trauma to acutes. She stated “So it would be like starting all over. First thing in the morning cleaning down, start of checking all the anaesthetic machines, making sure everything is fit for use, making sure everything is topped up, stocked up, that the operating table you have got all your equipment and because trauma was in there, you would have had to give it a deep clean because there would have been blood throughout.”

162. The Registrant explained the theatre cleaning process in respect of checking the machines she stated “so part of checking the machine is making sure that suction is in working order, that the scavenger is in working order, that all the anaesthetic gases, the desflurane, nitrous oxide, oxygen and air are working, making sure that the ventilator is working, making sure that the monitor is working, the capnograph, CO2, to make sure everything is stocked up and ready to go and clean and fit for use and making sure that everything is checked and signed for and drugs.”

163. The Registrant described the hypoxic test by stating “The hypoxic test is to make sure that the nitrous and the oxygen work together, so it does not give a nitrous overload. So, say you put it on ten litres, then the oxygen has – it just gradually builds up, it goes up itself, the oxygen. You do not need to turn the oxygen on for the nitrous test. This is just to make sure that that is working and that it is delivering the correct amount of nitrous to the correct amount of oxygen.”

164. The Registrant confirmed that this test was conducted when a theatre was changed from trauma to acute. The Registrant was asked about other tests where the nitrous would be switched on. She stated “Yes. You have got to turn the nitrous on and the oxygen to make sure that the backup flow is working from the cylinder. To do that you turn that on and then you go around the back and open or close the circuit and then an alarm should go off to make sure that this is working.”

165. The Registrant confirmed that she forgot to sign the logbook to state that she had checked the machine. She stated, “With it being busy, things happen and I genuinely just forgot, but you are supposed to sign it in the morning and on an evening and whenever you have made any changes to that anaesthetic machine.” The Registrant confirmed that others were also not consistent in their practice in respect of signing the logbook.

166. She confirmed, on the day in question, she checked the drugs as it was her responsibility. The Registrant confirmed JB witnessed the checking.

167. In respect of the first incident, the Registrant stated that she did not recall the day well, she noted that it was six years ago.

168. The Registrant confirmed that she told JB that she would be conducting ESR and told her what theatre she would be in. She confirmed that there was not a specific area set aside to complete work and the only availability was to go in theatres. She confirmed there was a chair to sit on in the theatre.

169. The Registrant was asked if she remembered JB coming into the theatre while she was sitting she stated “yes …whilst checking the machine, and I cannot recall at what stage I was doing which bit, but part of it is changing the scavenging and the scavenging is underneath the anaesthetic machine. I cannot remember if I had sat back down while I was checking the machine or stood back up”.

170. The Registrant noted that JB came into theatre about 6pm toward the end of the shift. The Registrant stated she was making sure everything was fit for purpose and was rechecking the machine.

171. The Registrant could not recall exactly what she was doing when JB walked in. She stated “I can recall that I did change the scavenging system. I did check the CO2. I would have done every check that I would have said, but I cannot recall exactly. I think I was checking the CO2 and checking the CO2 line, but again I cannot remember exactly”.

172. The Registrant confirmed part of the first check would be checking suction. The second check would be checking the oxygen, the nitrous and the air by doing the ‘tug test’.

173. In respect of the oxygen check she stated “you turn the oxygen on high flows and you go around to the back and you disconnect the oxygen and the alarm – the anaesthetic machine should alarm, and that means that it tells you that there is an oxygen leak somewhere, so then you plug that back in and then turn the oxygen off and then you check the back cylinder to make sure that the backup cylinder does work in case of an emergency. You would then proceed to do the oxygen and air.”

174. In respect of checking the nitrous she explained “so turn the nitrous on, go to the back of the machine, make sure that this cylinder drops so you know that the backup is working, and it will show you by a gauge on the front of the anaesthetic machine.”

175. The Registrant stated “You check that the actual gases are working, so you turn the nitrous on and then back off to make sure that the hypoxic guard was working so the nitrous and the oxygen is on and off.”

176. After the hypoxic guard test the Registrant confirmed that you would turn the vaporisers on and off and check the CO2 is working by blowing in the line. She explained that this was the capnograph test. The Registrant also explained that she would make sure the monitor, and the pressures were working.

177. The Registrant explained the ventilator mode. She stated, “It is a test lung that goes onto where the patient would be and that is done by turning the oxygen on, turning a switch and making sure that the bellows drive up and down and that there is no leak in the system.” The Registrant confirmed that she left the machine in ventilator mode after checking it, so it was ready for use.

178. The Registrant was asked about the order in which she checked the machine on 2 April 2018. She could not recall the order but stated that she made sure that she stuck to the AAGBI guidelines.

179. The Registrant confirmed that on the date in question she had a lot of personal issues. She stated “I just was not myself and I know I made failures that day I completely hold my hands up”.

180. The Registrant was asked why JB saw her with the pipe less than a foot away from her face. The Registrant stated “Because I was checking the machine I was obviously in close proximity with the anaesthetic machine. I again I cannot remember – I know I checked the CO2 and I know I had the pipe there, but I do not know in what stage or order, but I do remember her coming in but then my phone rang. I took the call and I left, and I should not have done that, I know that. I cannot quite remember what was said or, I know I left theatre, what was left on or was not.”

181. The Registrant was asked why the nitrous was on, she stated, “The nitrous would have been on when I was checking the hypoxic guard, but it was not – I cannot recall where it were to my face or where it were, but I would have had to have the gases on to check the machine because you have got to turn the gases on to do a full check of the machine.”

182. The Registrant denied misusing anaesthetic gases. She stated she would not jeopardise her career.

183. The Registrant was asked about the filter. She stated, “so any patient or anybody that uses the anaesthetic machine, it has got to have a filter on and the filter blocks out any contamination, so you would put a filter on if you were going to breathe in or out of the anaesthetic machine.”

184. The Registrant was asked if the masks would have been easily accessible to her, and she confirmed that they would have been.

185. In respect of the theatre, the Registrant confirmed that there were two ways to enter the area, through either the main door or the side sluice area door. She confirmed that none of the doors were locked, and staff could walk in at any time of the day. She confirmed there were 10 people on shift.

186. The Registrant confirmed that JB encountered her a second time in theatre 3. She stated she was checking the machine, and it was possible that she had said to JB that she was changing the circuit and testing the capnograph.

187. In respect of the circuit the Registrant stated “ Changing the circuit it comes as a separate component, so it comes as the circuit which is double and then a singular which is the test lung, and part of changing the circuit is to completely change the component on the anaesthetic machine, so this requires disconnecting and getting rid of the old breathing circuits and reconnecting for the new circuit and this includes them doing a full check again because you have changed the circuit.”

188. The Registrant confirmed the circuit was changed on a Sunday or Monday if it was a bank holiday, or if it had dirt inside or is contaminated. She stated she changed the circuit because there was trauma in the theatre in the morning and there would have been blood everywhere. She stated she would change the circuit when trauma finished and acutes went in.

189. The Registrant confirmed that it was possible that she encountered JB a third time towards the end of her shift. She could not recall the conversation(s) but agreed it was possible that JB had said to her “You need to be more careful and not so stupid”. She did not recall at any point JB accusing her of using anaesthetic gases.

190. The Registrant asked if there was a reason for the gases to be on at the end of her shift. The Registrant stated “Yes, I could have left the gases on from checking the machine when I walked out and took the phone call. I hold my hands up, I cannot recall if I turned the gases on or off so they could have been left on from that and then I went to recheck the machine to do the completion of checks but because of the time passage I cannot exactly recall.”

191. She stated the gases could be on from checking the hypoxic guard and the checking of the machine or just if they had accidentally been left on.

192. The Registrant was asked what checks she would do at the end of her shift she stated, “Just to make sure that the gases are working again, including oxygen, nitrous and that the vaporiser is working and that there is no leak in the circuit and you place it on ventilation mode, the anaesthetic machine.”

193. The Registrant did not recall when she did the hypoxic guard check. The Registrant described what a drug check entailed.

194. In respect of the bobbins on the anaesthetics machine, she confirmed these would float during a hypoxic guard test.

195. The Registrant was asked about a phone call that she took. She stated I was not myself on the day. We had a busy morning in acutes. I did not get my break. I had started at eight o'clock in the morning. I did not get my break until mid-afternoon. I just was not myself and I know I made failures that day and I completely hold my hands up. I should not have answered the phone, you know, but I just was not myself at all that day.”

196. In respect of the second incident on 16 June 2019, the Registrant confirmed that she had told others that she would be sitting in the theatre.

197. The Registrant was asked why the oxygen and nitrous was on when MV entered the room she stated “We had a section on when I first arrived in the morning that would not have finished for a few hours later, so I did not do my normal checks until later on. With it being on the bare minimum I could have left it on, and I just did not recall leaving it on because I had just checked the machines prior to that, but I cannot remember properly.”

198. The Registrant was asked about the alarms on the machines and why they would go off. She stated “There are various reasons why they alarm. There could be a break in a circuit. There could be a disconnection in the circuits. There could be a ventilation issues, oxygen issues, but there are various different alarms for various different reasons, high pressures, low pressures.”

199. The Registrant could not recall an alarm going off while she was there. She stated it was possible, but she could not recall. The Registrant further stated that she could have been jittery. The Registrant confirmed that there were three doors which allowed entry into the theatre.

200. The Registrant describes assisting with an epidural that day. She stated her role was “positioning of the patient, monitoring of the patient, assisting the anaesthetist with sterile procedure.”

201. The Registrant was asked about sitting by the anaesthetic machine later in the day she stated “I was six months pregnant. Throughout the day I would have been doing the cleaning of the theatres. I am a mentor. I was doing my mentor assignment.”

202. The Registrant was asked if it was possible that MV had asked her if she was using anaesthetic gases she stated, “It is possible, but then I went and did an epidural with her so I cannot remember.” The Registrant stated she did not recall a conversation, but it was possible it happened. The Registrant was asked if she remembered apologising, she stated “I could have apologised. I was upset. I am a very sorry person. I was not my fittest that day and I know that I was not, but again I was poorly so I could have.”

203. The Registrant vaguely recalled a conversation about swapping with another ODP and saying that she was fine. She confirmed that she performed a c-section later in the shift.

204. In relation to the outcome of her Trust grievance, she confirmed this took two years. She confirmed she is still in the same role as she was at the time she lodged the grievance. She confirmed that she worked between June 2019 until 2022 when she went on maternity leave.

205. The Registrant was cross examined. She was asked about her interview with the Trust on 8 May 2019 a few months after the event on 2 April 2018. The Registrant confirmed that the events were fresh in her mind then, and her recollection was better than it is currently.

206. The Registrant was asked if she swapped the circuit over in theatre 3 before JB came in the theatre. She agreed she checked the machine at 5.30pm and swapped the circuit. She accepted JB walked into the theatre at around 6.15pm. She confirmed that she was blowing in the CO2 line for a trace when JB walked in. The Registrant confirmed she was not blowing into the circuit.

207. The Registrant confirmed that JB would understand the difference between the circuit and the CO2 line. It was put to the Registrant that JB had said to her that the gases were on, and she had responded “they will be because I am checking the machine”. The Registrant agreed with this.

208. The Registrant was asked why the gases would be blowing out of the circuit if she was blowing into the CO2 line. The Registrant stated “I cannot 100 per cent remember, but if one of the breathing circuits would have been in one hand and the CO2 in the other one, I was doing it rushing – I was rushing. I had a lot going on. I do not know. I made some mistakes. I do not know, but I definitely was not blowing into the breathing circuit.”

209. The Registrant confirmed that she turned the nitrous on, and then off, immediately when testing. It was put to the Registrant there was no need to leave it on. The Registrant stated “No, not at all and again in the passage of time I cannot recall – I got the phone call midway through, and I cannot remember if I turned it on or off in the conversation – it was vague, I cannot remember”.

210. The Registrant was asked about blowing into the CO2 line while the gases where on. She stated “Yes, I could have not possibly turned it off and I was in a rush doing it, so I was doing a quick check. I blew into the CO2 and then went to turn the gases off; I cannot remember.”

211. The Registrant could not recall if she turned the gases off. The Registrant was asked whether she was holding the circuit line where the gases were coming out and holding the CO2 line at the same time blowing into it. She stated she thought so. It was put to her she should turn the gases off before blowing in the line. She stated “I cannot remember but it is a separate circuit, so I do not know if I forgot. I cannot remember and I was just doing it in a rush. I cannot remember.”

212. The Registrant was asked about the number of times she checked the machines she stated “It is all dependent on where you are working, so in the acute situation that day I checked the machines two, four, eight, nine times because of the change in handover of theatres and because of the change in these two anaesthetic machines in each theatre, so theatre four, I would have checked that at the beginning, made sure and then shut it down, and then again I think I checked the anaesthetic – I apologise – five times. It is confusing. There are different anaesthetic machines because there were four anaesthetic machines in total to check throughout the day.”

213. The Registrant confirmed she had been in her role for 4 years and she checked machines every day. It was put to the Registrant that she was inhaling anaesthetic gases when JB walked in; she denied this.

214. The Registrant was asked about the order of events on 2 April 2018. She confirmed that she was blowing on the CO2 line when JB walked in, she then took a phone call and when she returned she did the drugs check with JB.

215. The Registrant confirmed she went to theatre 3 at 3.30pm and saw JB at 6.15pm. it was put to her she was in theatre 3 for 2 hours and 45 minutes, before she saw JB; she agreed.

216. The Registrant confirmed that it takes a couple of minutes to change a circuit.

217. The Registrant confirmed that she had told JB that she had ESR paperwork to do. She confirmed that after doing the drug check, she went to compete this paperwork. The Registrant confirmed that towards the end of the shift around 7.30pm she was sitting down, next to the anaesthetic machine. The Registrant confirmed she described JB as storming in and saying, “the gases are on”.

218. It was put to the Registrant the gases were on at 6.15pm and the next time JB mentioned the gases were on was 7.30pm. The Registrant stated, “Yes, but I did not know if the gases got turned on or off. I cannot remember. So, the gases could have been on for the hour and I would not have known unless looking at the anaesthetic machine when I was checking it.”

219. It was put to the Registrant that it was inconceivable that she would walk away from that machine and just put the circuit ‘down’ with the gases flowing. The Registrant stated “I could have. I hold my hands up, I was not in the right frame of mind. I cannot recall if the gases were turned off or on and that is very bad judgement on my behalf, and I regret it every day of my life. Do you know – but I cannot remember – I know it does not look good and I should not have – looking back, I deeply regret answering the phone call, but I cannot remember if it were turned on or turned off and it could have well been left on for that morning, for that hour, sorry, I do not know.”

220. The Registrant confirmed that after the drugs check she would have been doing her paperwork at the anaesthetic machine for nearly an hour. It was put to her that if she was in front of the anaesthetic machine with the gases on she would have noticed. She stated “Yes, but if I was doing my paperwork, my ESR, and I was not actually looking at the machine until I was doing it in the handover before I left.”

221. The Registrant could not recall if herself or JB turned the gases off at 6.15pm. The Registrant said she could not remember either way. It was put to the Registrant that after the drugs count, she would not have done anymore checks on the machine. The Registrant stated “I would have rechecked. Obviously, I did not complete my checks. I walked out of the theatre to go onto the phone, so I would have completed the checks either towards the end of the shift for the night staff to come on because it is acute so it needed to be ready for acute staff to come on, so I would have.”

222. It was put to the Registrant that if she had done checks after the drugs count, then she would have done those first. The Registrant stated “I cannot recall if I went straight back to theatre or went straight to the anaesthetic –I cannot recall where I went straight away. I cannot recall and I do not want to lie so. I cannot remember.” The Registrant stated “I went back to theatre. I completed my checks, which I would have done to make sure that everything was done, and I completed that e-roster and I completed my paperwork that was required of me as well as all my tasks. I cannot remember the exact order that it went in.”

223. It was put to the Registrant that she had originally stated in her Trust interview that the gases must have been shut off at 6.15pm. The Registrant stated “I did originally say I could not remember. I have never been in this situation before so. I got confused. I am still confused now, but I said I could not remember back then and then I do not know – I cannot – I do not know if the gases were turned on or off.” The Registrant then accepted that later within the interview she conclusively stated the gases were turned off at 6.15pm.

224. It was put to the Registrant she was inhaling anaesthetic gases when JB came in at 7.30/7.45pm. The Registrant denied this. It was put to the Registrant the gases were on, she stated “I cannot recall. They could have been on. I was checking the machine, which they would have been on checking the machine. I could have left them – I cannot recall.”

225. The Registrant stated she could think of no reason why JB would make the allegations against her. The Registrant was asked about the fact that JB said “what are you playing at” she stated “I cannot recall that, no. If it was in the original statement, she must have said it, yes, but I cannot recall.”

226. It was put to the Registrant that she was doing paperwork, not checking the machine, she stated, “but it could have been left on from when checking the machine.” The Registrant accepted she was doing her paperwork and would not have noticed the gases were on. Her interview was put to her in which she stated she said to JB “Look I am sorry; I must have turned them on”. The Registrant agreed the gases were on at around 7.45pm.

227. The Registrant agreed that the check of the nitrous was a simple check.

228. The Registrant was asked if she used Entonox. She denied this.

229. JB’s account that the Registrant was sat in front of the anaesthetic machine, her face low down and the circuit was really close to her face was put to the Registrant. She stated “I would not have been sat there with the oxygen with the face mask against my face, no.”

230. The Registrant was asked about the bobbins being up on the machine and the oxygen being at 6 and nitrous at 10. She agreed this was a possibility. It was put to the Registrant that JB said she turned the gases off. She stated, “If she said I did, yes.”

231. The Registrant agreed after this she took a phone call, and this would have been the time that JB went to speak to AL.

232. The Registrant accepted JB had a good recollection of the first incident.

233. It was put to the Registrant that there was no reason for the gases to be on after the drugs check. The Registrant stated, “that is what I do not know if I turned them off, so they could have still been on from the first time – I cannot recall if they got turned on or off.”

234. The Datix report of JB was put to the Registrant, and she was asked why JB who had no bias or reason to lie would report these matters. The Registrant stated it was a misunderstanding.

235. In respect of the incident on 16 June 2019, the statement of MV was put to the Registrant and her responses in interview. It was put to the Registrant that she had said that she did not recall the gases being on and there was no explanation for them being on.

236. It was put to the Registrant that she had said the machine could have been knocked causing an alarm to go off. The Registrant stated she couldn’t recall if the alarm went off. The Registrant accepted that she did not say the machine was in ventilator mode in interview.

237. It was put to the Registrant that she also did not mention checking the machine when she was interviewed. She confirmed she did not. The Registrant was asked if she recalled Entonox running at one to two litres, she confirmed she did not.

238. The Registrant was asked about being challenged by MV, she stated “Well, she would have challenged me and then she would have let me go on and work with her, so that does not – she would not have challenged me and then let me work with maternal patients, surely.”

239. The Registrant was asked whether MV had any bias or prejudice towards her, she confirmed she did not. The Registrant confirmed that they worked together infrequently.

240. The Registrant confirmed that it could have been possible that MV saw both the oxygen and the nitrous were turned on. The Registrant said she did not notice the alarm go off as she was on the phone.

241. It was put to the Registrant that she was jittery because of the use of Entonox. She denied this.

242. The Registrant denied that MV saw her sitting at the machine with the mask or filter pointing at her face.

243. It was put to the Registrant that when MV saw her she was not doing checks on the machine. She agreed with this. The Registrant agreed that the gases on the machine could possibly have been on. The Registrant stated she could not recall but MV could have challenged her about the use of Entonox.

244. The Registrant was asked why she apologizes when she was spoken to by MV she stated “because I was not myself that day, I was poorly. I was really, really poorly and I had apologised because I was not myself that day. I was not 100 per cent. I should not have gone into work. I understand that now.”

245. The Registrant was asked why she would apologise if she hadn’t done anything wrong she stated, “I cannot recall, I do not remember.”

246. The Registrant denied inhaling anaesthetic gases on 2 April 2018 and 16 June 2019.

247. The Registrant was re-examined by Ms Shah she confirmed in relation to the second incident it had never been her case that she was checking the machine. She stated it was a misunderstanding with MV. The Registrant confirmed she was checking the machine when JB entered the room, but she could not pinpoint the exact step she was doing as she was rushing.

248. The Registrant was asked questions by the Panel. She was asked to provide an explanation as to why she was checking the machine at 6.00pm when JB walked in. The Registrant stated, “There are multiple anaesthetic machines, so there was one in the anaesthetic room in theatre three, so I think I must have started – I would have started with that and that is what I was on about the anaesthetic room in theatre three’s anaesthetic room.” The Registrant could not recall how many machines she checked.

249. The Registrant was asked whether she should have checked the machine sooner than 6pm. She stated, “I checked the anaesthetic room so at least we knew that that one is working if needs be and it was already checked in the morning and we had had theatre four working as well, so I knew there was another anaesthetic machine working but I started off in the anaesthetic room and started in there and then proceeded.”

250. The Registrant was asked if there was any reason why she could not complete the checks sooner and she stated there was not. The Registrant was asked about the passage of time she stated “I was transferring everything over from theatre three to theatre four so swapping of all the tubes, getting rid of all the drugs, making sure the table were clean and tidy, making sure that theatre four, so I was not just in theatre three for them two hours, I was in between both theatres throughout”.

251. The Registrant was asked whether the hypoxic guard and the gas pipeline tests were quick tests she confirmed that they were. The Registrant explained that the gases could be turned off very quickly.

252. The Registrant was asked how she accounted for two members of staff mistaking what they had seen she stated “I do not know why. It is just a miscommunication and misinterpretation. I do not know why; I definitely did not.”

253. The Registrant was asked why she did not give an explanation to MV when she had previously been suspended for similar matters. She stated “Yes, looking back, do you know, I was highly irresponsible. I should not have sat in theatre regarding the other allegations, and I completely get that. It was a complete misjudgement, and I did not expect it to obviously escalate to this and I did not know – I do not know how to explain it, but it is a complete misjudgement on my behalf and oversight and, yes, I should have. Looking back now, yes, I should not have, and I should have given more explanation, but I was not in the right head frame that day, and for that following couple of months. It is an oversight on my behalf, and I completely regret that now.”

254. The Registrant was asked about the inconsistency in her addendum statement in which she stated she was checking the machine when MV entered on the third occasion. The Registrant stated “I know I put it here, but I do not know if I have got mixed up with the third occasion because there is the third and the fourth occasion, I cannot recall. All I know is that I would have been checking the machine later on towards the evening for the night staff to come in.”

255. The Registrant was asked why she was rushing because it was a quiet day. The Registrant said she was playing catch-up because they had been busy in the morning.

256. The Registrant was asked about checking the machine on 16 June 2019 and the fact that she confirmed in re-examination that she was not. She stated she could have misunderstood the question.

257. However, the Panel noted the following evidence:

MS SHAH: “Ms Jones, can I first ask you to clarify, just so everybody is clear, you have confirmed that in your interview about the incident on 16 June 2019, so the one that [MV], it has never been your case, nor is it now that you were checking machines.

A. No.

Q. You have never said it in any of your interviews, nor do you wish to rely on that during the course of this hearing.

A. No.”

258. The Registrant was asked about her explanation as to why the nitrous was on and she stated, “It could have been from the previous in the morning.”

259. The Registrant was asked about the first incident (2 April 2018), and she confirmed she would not blow into the CO2 line with the gases on. The Registrant was asked why the gases were on. She stated she was rushing, and she did not know if she left the gases on.

260. The Registrant was asked why she was checking the machine towards the end of the shift she stated, “because it is an acute service to make sure it is ready and fit for purpose for the night staff to come on because it is 24/7.”

261. The Registrant confirmed she would check the machine on multiple occasions during a shift.

262. In re-examination, the Registrant stated she did not recall checking the machine when MV walked in, it was part of her job and at some point she would have checked the machine.

263. JL was called to give evidence for the Registrant. He confirmed the content of the character statement that he had provided on her behalf. He was asked about machines in ventilator mode. He stated “Personally I always leave the bag on the end of the circuit whilst ventilating. I usually leave it on low flows. I do this because any low leaks within that circuit will, if it is an anaesthetic machine which is bellow driven, any leaks in the system, the bellow will drop down and then it will start alarming when basically it cannot drive the ventilator. That is basically why I leave that right there ready for the patient.”

264. JL was asked by the panel how long he would leave the machine in ventilator mode for he stated “Well, it is usually prior. I set it up prior to the list. I do not really – during in between cases I do not obviously leave the bag off. We end the cycle of the anaesthetic machine ventilator and patient and then we take the patient in next door. It is only the beginning of the theatre list that I leave the bag on in ventilator mode because basically it is just to ensure that the circuit is not leaking.”

265. JL was asked how often he would check a machine. He confirmed he would check it in the morning and check it at the twelve-hour recalibration point of the ventilator.

266. In re-examination JL was asked if the morning shift had had trauma and the theatre then became an acutes theatre, would he check the machine before it became an acutes theatre. He stated “No, because I had already checked the anaesthetic – if I was there all day and I was moving – if I was doing the trauma list and the acute list, I would have still been confident with the anaesthetic machine.”

267. He was asked if he was coming into theatre, from a different theatre, whether he would check and he stated he would.

Submissions

268. The HCPC provided written submissions which were considered in full by the Panel.

269. Ms Shah, on behalf of the Registrant, provided written submissions which were also considered by the Panel in full. Ms Shah on behalf of the Registrant also expanded upon these written submissions with further oral submissions. Ms Shah stated, having reviewed her submissions, that she wished to reiterate that the theatre the Registrant was in, was a theatre where both JB and MV knew how to find her, it was unlocked and number of people could walk in and out. Ms Shah stated if the Registrant had wished to covertly inhale gases, or misuse gases, there were other theatres and rooms that she could have used that would have given her more privacy.

270. The Panel accepted the advice from the legal adviser, which included the following:

a) It is for the HCPC to prove the allegations on the balance of probabilities. The proper approach to the balance of probabilities and the standard of proof where serious allegations are concerned is set out in the case of Byrne v General Medical Council [2021];

b) All the evidence should be considered before making findings of credibility, and when making such findings, the Panel should not rely exclusively on demeanour; Suddock v NMC [2015] EWHC (Admin) 3612 and R(Dutta) v GMC [2020] 1974 (Admin), Khan v General Medical Council [2021];

c) Hearsay evidence must be treated with caution and consideration given to its admissibility and then the weight, if any, that can be afforded to it;

d) The Registrant is of good character and the Panel may take this evidence into account on the question of propensity, i.e., whether it is likely that she would have acted as alleged in the circumstances.

Decision on Facts

Particular 1(a) – Found Proved

As a registered Operating Department Practitioner (ODP35988) your fitness to practise is impaired by reason of misconduct.

In that:

1. You inhaled and misused anaesthetic gases, at your place of work whilst on duty on or around:

a. 2 April 2018

271. The Panel considered the evidence of JB. The Panel noted that JB was an experienced ODP practitioner who worked regularly with anaesthetic machines. JB gave clear and detailed evidence before the panel on the operation of these machines.

272. The Panel noted that it was accepted by the HCPC’s witnesses and the Registrant that 2 April 2018 was an unusually quiet day at the Trust and both theatres had finished by 3.30pm.

273. JB’s evidence was that at approximately 6.15pm she found the Registrant in Theatre 3, sat down with her face low down and the circuit close to her face, and according to her statement ‘less than a foot’ away. JB also gave evidence as to the Registrant’s reaction when she entered the theatre. JB described the Registrant as nervous and jumping a bit.

274. JB gave clear evidence that when she walked into Theatre 3, she saw the oxygen on the anaesthetic machine was at 6 litres and the nitrous was on 10 litres. This corresponds with her near contemporaneous DATIX report. The Registrant was asked specifically about this issue in evidence and did not dispute that the gases on the machine may have been at these levels.

275. The Registrant’s explanation within her witness statement was that she was testing the machine at the time by blowing into the CO2 line and “when JB walked in the gases could have been on”. In her oral evidence, the Registrant stated she would not blow into the CO2 line with the gases on. However, in cross-examination this part of her statement was put to her, regarding the gases being on, and she stated that she was rushing, and she didn’t know if she left the gases on. She then said she couldn’t quite recall. The Panel considered that the Registrant’s evidence as to whether or not the gases were on at this stage was inconsistent. She had stated in evidence that she may have been testing the CO2 line while the gases were on, which is something that she accepted was not appropriate. The Panel considered that none of the Registrant’s explanations were credible and the more consistent explanation was that when JB walked into the room the Registrant was inhaling anaesthetic gases.

276. The Panel considered that it was accepted by all witnesses that testing the nitrous and oxygen on the anaesthetic machine, through the undertaking of a hypoxic guard test, takes a matter of seconds. It was further accepted that the hypoxic guard test would be the only test where both the nitrous and oxygen would need to be on.

277. The Panel did not accept the Registrant’s explanation that she may have mistakenly left the gases running whilst conducting a hypoxic guard test check on the machine. The Panel noted that the Registrant had worked with anaesthetic machines on a daily basis in her role for over a four-year period and would have been extremely familiar with the machine checks she needed to conduct. The Panel considered that it was implausible that she would have conducted such a routine, quick and simple hypoxic guard check so incorrectly, and that she would not have noticed that she had failed to switch the gases off. The Panel considered the Registrant’s explanation that she was rushing and not herself due to stresses in her personal life. However, the Panel considered this explanation in light of the agreed evidence that the day was unusually quiet. The Panel did not accept that there would have been any need for the Registrant to be rushing and noted that she had ample opportunity to conduct the relatively brief and standard checks she was required to conduct on the anaesthetic machines.

278. The Panel noted the evidence of the Registrant, surrounding the first occasion that JB, having spoken to AL, confronted the Registrant because the gases were on. In her original interview the Registrant had stated that at this stage the gases were turned off. The Datix stated “they switched the gases off”. The Panel considered that given the exchange that had taken place, namely the Registrant being alerted to the gases being on, it was highly likely that either the Registrant or JB would have turned the gases off.

279. Therefore, the Panel did not accept the Registrant’s explanation in oral evidence that the gases may have remained on between when she went to make a phone call (6.28pm) and the second time, at 7.30/7.45pm, that JB observed the Registrant sat next to the anaesthetics machine with the gases on. The Panel concluded on the balance of probabilities that the gases would have been switched off in between.

280. The Panel noted that the first incident caused JB to make a contemporaneous disclosure of her concerns to AL. The Panel noted the content of AL’s Trust interview that took place a matter of days after the incident on 2 April 2018, namely on 18 April 2018. The Panel considered that AL provided clear and consistent evidence to the Panel in respect of those concerns. The Panel considered that JB’s contemporaneous disclosure to AL was significant, as it was evidence that JB was sufficiently concerned by the Registrant’s behaviour to seek advice from AL. The Panel noted that AL’s evidence aligns with JB’s evidence.

281. The Panel noted that when JB returned to the room after speaking to AL, the Registrant stated ‘she had been changing circuits and testing the capnograph’.

282. The Panel noted that after the Registrant conducted a drug count she signed the drugs log book. The Panel had sight of this log book and noted the signatures of the Registrant and JB recorded on 2 April 2018 at ‘19:05’. Following this it is understood that the Registrant returned to Theatre 3. The Registrant stated in her original interview that she was completing ESR paperwork for an hour. When JB spoke to the Registrant at approximately 7.30/7.45pm, JB gave evidence that the gases were on again. The Panel carefully considered the Registrant’s explanation that she may have been checking the machine at the end of the shift. The Panel noted that, in evidence, the Registrant made reference to checking the machine on more than four occasions that day. The Panel considered that this was surprising given the evidence of the Registrant’s own witness JL, who stated he would check a machine once in the morning and at the twelve-hour recalibration point of the ventilator. The Panel noted that none of the checks the Registrant conducted were recorded, however, the Panel accepted the evidence of other witnesses that there was inconsistency in respect of documenting machine checks, so placed limited weight on this point.

283. The Panel placed weight upon the relatively contemporaneous Datix report completed by JB. The Panel considered that whilst there were inevitable inconsistencies in JB’s evidence, given the passage of time in this case, her account of 2 April 2018 was largely consistent with the contemporaneous Datix report she had completed. The Panel noted that JB had no apparent motive for raising the allegations against the Registrant. Similarly, AL had no apparent motive for supporting JB’s account.

284. The Panel concluded that given JB’s experience and consistent operation of anaesthetic machines she would be able to easily recognise when the nitrous and oxygen was or was not running on an anaesthetic machine when she entered a room. Further, she would be able to differentiate between observing a person conducting routine machine checking or acting suspiciously.

285. The Panel considered the Registrant’s evidence was inconsistent and vague. The Panel considered that there were clear inconsistencies in the evidence she gave in her original interview compared to the oral and written evidence, the most significant of these inconsistencies being the issue of whether the gases were turned off after the first incident with JB. The Panel did not accept the Registrant’s explanation that this was simply a repeated misunderstanding of a situation by JB. The Panel considered that it was almost inconceivable that on two separate occasions JB walked in on the Registrant at exactly the point she was conducting a brief check of the gases. The Panel also struggled to reconcile the Registrant’s evidence that she may have left the gases on when she was interrupted by a phone call (6.28pm) and that she may then have later returned to theatre, not noticed the gases were on at 7.30/7.45pm and completed paperwork for an hour.

286. While the Panel noted the point raised by the Registrant that she was able to perform a drugs check on the day in question, at 7.05pm, the Panel considered this in light of the evidence of MV who explained the temporary effect of nitrous and oxygen. The Panel considered in the circumstances the Registrant would have been able to conduct such checks without being noticeably incapacitated.

287. Further the Panel noted that the machine did not have a filter or mask attached and was distributing gases which would have mixed with the air in the room. The Registrant would not have been inhaling the gases directly from the machine. The Panel considered the evidence that this would have reduced the effect of the gases. Therefore, the Panel did not accept the submissions made on the Registrant’s behalf that the level of nitrous and oxygen that the Registrant was alleged to have been inhaling would have resulted in the Registrant being unconscious.

288. The Panel considered the Registrant’s good character but found her evidence to be highly implausible in respect of why she was near to the machine and the gases were repeatedly on at exactly the instant when JB entered the room given the fact that:

▪ the hypoxic guard test only takes a few seconds;

▪ and according to the Registrant’s evidence, it only takes ‘A couple of minutes to change the circuit’’;

▪ the capnograph (C02) test is not undertaken with the gases on.

In the absence of a plausible explanation and on the basis of the Datix and consistent evidence provided by JB and AL, the Panel determined that on the balance of probabilities the Registrant was inhaling and misusing anaesthetic gases on 2 April 2018.

Particular 1(b) – Found Proved

As a registered Operating Department Practitioner (ODP35988) your fitness to practise is impaired by reason of misconduct.

In that:

1. You inhaled and misused anaesthetic gases, at your place of work whilst on duty on or around:

b. 16 June 2019

289. The Panel considered the evidence of MV. Again, the panel considered that MV had significant knowledge and experience of anaesthetic machines.

290. The Panel considered that MV gave clear and compelling evidence. MV described that she found the Registrant sat at and/or next to the anaesthetic machines on multiple occasions with the oxygen and nitrous on, and on one occasion when she saw that only the oxygen was on.

291. The Registrant in her oral evidence did not dispute that the gases may have been on when MV entered the room. Further, it was clearly stated by the Registrant’s representative that the Registrant’s case is not that she was checking the machine on any of these occasions. Within the Registrant’s original interview, she stated that she had checked the anaesthetic machine in the morning. The Panel considered that there was no credible explanation as to why the gases were found to be on by MV.

292. The Panel noted the significant inconsistency in the Registrant’s evidence in respect of checks to the machine. It was made clear in re-examination and in Panel’s questions that it was not part of the Registrant’s case that she was checking the machine at any stage during 16 June 2019 when MV saw her. The Panel however noted that there were several references to the Registrant checking the machine on 16 June 2019 in the Registrant’s first and addendum statements. Specifically, the Registrant stated in her first statement that on “The third occasion the nitrous was on as i was rechecking the machine and performing the hypoxic mix test as MV walked in.” The Panel considered that this was a significant inconsistency which caused the Panel to question the plausibility of the Registrant’s explanations.

293. The Panel noted that when MV challenged the Registrant on the final occasion about the use of anaesthetic gases. MV’s evidence was that the Registrant profusely apologised.

294. The Panel considered the Registrant’s explanation in respect of this apology to be very unclear. She stated (within evidence) that she could have apologised. She noted she was upset and was not at her fittest that day. The Panel noted that the Registrant had previously been subject to an investigation and suspended, the previous year (2018) for very similar allegations. She would therefore have known the serious implications of such allegations. The Panel considered it was implausible that she would apologise simply because she was feeling upset and not at her fittest. The Panel considered that the reason the Registrant apologised was because she believed that MV had seen her inhaling anaesthetic gases.

295. The Panel noted that MV provided a contemporaneous account of this incident in a statement that was produced 4 days after the events occurred, namely 20 June 2019. The Panel considered that MV’s oral evidence was consistent with this email account. MV gave clear evidence that when she entered the theatre the circle system was pointing at the Registrant’s face and the nitrous was turned on. MV confirmed that the nitrous should not normally ever be on.

296. The Panel considered MV’s evidence that the Registrant appeared ‘jittery’. The Panel considered that this evidence was consistent with the reaction a person may have from inhaling anaesthetic gases.

297. The Panel noted that MV and the Registrant had rarely worked together and MV had no apparent motive for raising the concerns in respect of the Registrant. The Panel reminded itself of the evidence of WH who confirmed that in interview MV was calm, clear, wanted to support the Registrant, did not want to get her into trouble and was concerned for the Registrant’s wellbeing, knowing she was pregnant at the time. MV was a doctor with specialist knowledge of the anaesthetic machines, and she would be able to easily recognise when the nitrous and oxygen was or was not running on an anaesthetic machine when she entered a room.

298. The Panel noted the submissions made on behalf of the Registrant that MV proceeded to perform an epidural with the Registrant following, observing her with the gases on. The Panel noted that it was agreed that there was a conversation about the Registrant swapping with another ODP. The Panel accepted the evidence of MV that she was relatively junior at the Trust at the time, had not dealt with such issues and would now have dealt with matters differently. The Panel noted that the effects of nitrous and oxygen are temporary and as such the panel considered that despite inhaling gases it was possible for the Registrant to have carried on with her role that day.

299. The Panel noted the evidence of MV in respect of the alarm going off on each occasion that she entered the theatre. The Panel gave limited weight to the evidence in respect of alarms on the basis that, taking the evidence in the round, the sounding of an alarm was not proof that the Registrant was misusing anaesthetic gases.

300. In the absence of a plausible explanation as to why the gases were on, and on the basis of the contemporaneous email and the consistent evidence provided by MV, the Panel determined that on the balance of probabilities the Registrant was inhaling and misusing anaesthetic gases on 16 June 2019.

Reconvened hearing 8 April 2024

301. At the commencement of the reconvened hearing on 8 April 2024, the Registrant provided a written reflection to the Panel. In that she admitted to the allegations which the Panel had found proved. She said she had been in denial, and with hindsight should have admitted everything when she had the chance.

302. The Panel raised with the parties whether, in view of the Registrant’s reflection, and her admitted dishonesty, this had become a case of undercharging.

303. Both Ms Shah and Mr Bridges made submissions that the development represented no more than a ‘rejected defence’, which the Panel could, if it was so minded, take into account at the impairment and sanction stages, in accordance with Sawati v GMC [2022] EWHC 283 (Admin).

304. The Legal Assessor advised that in accordance with Sawati “How a professional responds to formal proceedings may be relevant to an overall assessment of their professionalism … and other important considerations may be engaged, as well as insight and remediability. Lying to Tribunals and putting forward disingenuous or meretricious defences cannot be expected to be consequence-free.”

305. Here the Panel was concerned that it was faced with a situation more akin to that described in The Professional Standards Authority for Health and Social Care v The Nursing and Midwifery Council, Ms Winifred Nompumelelo Jozi [2015] EWHC 764 (Admin). The PSA’s appeal was upheld, essentially on the basis that the NMC had failed to bring the full substance of what had occurred before the Panel, and serious charges that should have been brought never were. The Legal Assessor advised that this was a matter that the Panel had rightly raised with the parties, given its concerns and duty to be proactive, however it could not force the HCPC to bring additional allegations.

306. Following further discussion, it was agreed Mr Bridges would take instructions, after his attention was brought to paragraph 86 of the judgment in Sawati:

“A distinction is made here between proceedings involving allegations of dishonest conduct … and proceedings which do not involve allegations of dishonest conduct but where the allegations are defended dishonestly. The former may be considered in the round, including conduct at the hearing as part of the overall picture, but the latter ought fairly to be separately charged.”

Mr Bridges returned to confirm that his instructions were to proceed to with the case as charged.

Decision on Grounds

307. Mr Bridges on behalf of the HCPC provided written submissions. He referred to key caselaw and submitted that the Registrant’s actions fell far short of what the public would expect from a professional registered with the HCPC, and that her conduct in inhaling anaesthetic gases had the potential to endanger patients. Mr Bridges submitted that the Registrant’s actions had breached Standard 9 of the HCPC’s Standards of Conduct, Performance and Ethics.

308. Ms Shah referred the Panel to the Registrant’s reflection, written since the findings of fact had been handed down, a bundle that included her CV and evidence of clinical competencies, ‘thank you’ cards and selected medical records. The Registrant had also provided for the Panel’s consideration a medical report from her GP and a 12 page bundle of testimonials from colleagues and people who know her.

309. In relation to misconduct, Ms Shah submitted that this is a matter for the Panel’s judgment, but to the extent that it may assist, she confirmed that the Registrant accepts misconduct.

310. The Panel accepted the advice of the Legal Assessor. It was aware that there is no statutory definition of misconduct, but guidance was given in Roylance v General Medical Council (No.2) [2000] 1 AC 31: “Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed.....in the particular circumstances”; and Doughty v General Dental Council [1988] AC 164 which is authority for the position that any falling short of standards should be serious, so as to cross the misconduct threshold.

311. The Panel had regard to the Registrant’s reflective statement. She said that during the evening it was quiet, and she inhaled the gases when no-one was around. She knew it was wrong. With regard to the 2019 incident, the Registrant again attributed that to her health at the time.

312. The Panel noted that the facts it had found proved involved misusing drugs at work, on two dates including when the Registrant was treating patients. It had regard to the HCPC’s Standards of Conduct, Performance and Ethics. It considered that the following Standards had been breached:

• 6.2 - You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk

• 6.3 - You must make changes to how you practise, or stop practising, if your physical or mental health may affect your performance or judgement, or put others at risk for any other reason

• 9.1 - You must make sure that your conduct justifies the public’s trust and confidence in you and your profession

313. The Panel additionally considered the HCPC’s Standards of Proficiency. It was of the view that the Registrant’s actions breached the following standards:

• 2.2 - promote and protect the service user’s interests at all times;

• 2.4 - understand what is required of them by the Health and Care Professions Council, including, but not limited to, the standards of conduct, performance and ethics;

• 3.1 - identify anxiety and stress in themselves and recognise the potential impact on their practice;

• 3.2 - understand the importance of their own mental and physical health and wellbeing strategies in maintaining fitness to practise;

• 3.3 - understand how to take appropriate action if their health may affect their ability to practise safely and effectively, including seeking help and support when necessary.

314. The Registrant did not, in her reflection or elsewhere, explain why she failed to seek further help or advice from her GP, but decided to self-medicate instead. Given that the Registrant had consistently, in her oral evidence, denied that she used the anaesthetic gases to self-medicate, the Panel was surprised to be provided with this explanation on the morning of the reconvened hearing (8 April 2024). Whatever the reason, the Registrant now accepts she knew that what she did was wrong. She says she is deeply ashamed and embarrassed, which is why she had always denied it.

315. The Panel was of the view that the Registrant’s conduct fell far below the expected standards because she had on two occasions, at work, self-medicated and inhaled and misused anaesthetic gases intended for use by patients. This not only potentially deprived patients of pain relief when needed, but also gave rise to possible patient harm because of the potential for the Registrant to have impaired judgement. By behaving in this way, as she now recognises, the Registrant risked errors of judgment when caring for patients, putting her own interests first, and placing them at potential risk of harm.

316. The Panel determined that the Registrant’s actions on each occasion fell significantly short of what was expected in the circumstances. The Registrant’s conduct did not justify the trust that the public, including patients and colleagues, placed in her. Her actions amounted to misconduct.

Decision on Impairment

317. Mr Bridges referred the Panel to the HCPTS Practice Note on Impairment and the key caselaw. He invited the Panel to consider both the personal and public component. In relation to the personal component, he submitted that the Panel should look at the level of insight the Registrant has shown and then assess the risk of repetition of the conduct. As to the public component, Mr Bridges referenced the case of Fopma v GMC, [2018] EWHC 714 (Admin) which he submitted gives helpful guidance as to what is meant by the reputation of the profession. He invited the Panel to find current impairment in relation to both the personal and public components.

318. Ms Shah on behalf of the Registrant, submitted that the Registrant’s conduct is unlikely to be repeated. She referred the Panel to the testimonials which speak of her otherwise good performance at work. She submitted that this process has had a salutary effect on the Registrant and will guard against repetition in the future. Ms Shah submitted that the Registrant’s admission today that she acted as alleged is the first step towards remediation. Ms Shah submitted that the Registrant’s health had a contributory role, and the Registrant recognises this and is now more open with her managers and she takes time off when needed. Ms Shah submitted that the Registrant’s reflection shows that she has genuinely thought about how she will prevent herself making the same mistake again. Combined with her apology and the insight shown in the statement, Ms Shah invited the Panel to find that this is not a Registrant who will repeat their misconduct, and hence is not impaired on the personal component.

319. In terms of the public component of impairment, Ms Shah submitted that there may be a public interest in a finding of impairment in the circumstances of this case, but she reminded the Panel that the Registrant has taken significant steps to remediate and that there have been no other regulatory concerns.

320. Ms Shah confirmed to the Panel that the Registrant’s recent reflective piece, when she admits the allegations in full, was written over the weekend (6/7 April 2024) and should be dated 8 April 2024. Ms Shah further confirmed that none of the authors of the testimonials were aware of the Registrant’s recent admission including the Registrant’s current line manager.

321. The Panel accepted the advice of the Legal Assessor and was aware that:

• The existence of impairment is a matter for the Panel’s own independent judgment or assessment;

• In assessing impairment, the Panel is looking at the past to assess the present, as set out by Sir Anthony Clarke in Meadow v General Medical Council [2006] EWCA Civ 1390:

• In line with Sawati v General Medical Council [2022] EWHC 283 (Admin), the Panel is entitled to take into account the Registrant’s approach to these proceedings and her denial of the primary facts, when assessing impairment;

• In Cohen v General Medical Council [2008] EWHC 581 Mr Justice Silber suggested a 3-fold "test"; the Committee may be assisted by asking itself: Is the conduct of the Registrant remediable? Has it been remedied? Is it highly unlikely to recur?

• In Council for Healthcare Regulatory Excellence v NMC and Grant [2011] EWHC 927 (Admin) it was emphasised that panels need to consider “whether the need to uphold professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances”.

322. The Panel had regard to the HCPTS Practice Note on Impairment. When assessing the Registrant’s insight and remediation, the Panel gave consideration to the testimonials, put before it to demonstrate the Registrant’s general professional conduct. The Panel noted that almost all of the testimonials referenced the Registrant’s competence as an ODP. Nevertheless, the panel noted that all save for one of these had been written before it had made its findings of fact, and before the Registrant’s subsequent admissions. The Panel therefore gave very limited weight to the testimonials, as the authors were not aware that since 8 April 2024 the Registrant, having consistently denied the allegations dating back to 2018 and 2019, now admits them in full. An example of the Panel’s concern is as follows from a fellow ODP (pg.12): “She has worked so hard for her pin and to work professionally which leads me onto say that the allegations brought forward against Emma make it so hard to believe.” Further, some of the testimonials referred to the Registrant’s honesty and trustworthiness. Indeed, even the Registrant’s manager, who had written her testimonial (dated 8 April 2024, 10.53am) having been informed that the allegations had been found proved, had not been told by the Registrant that she had in fact acted as alleged. As stated, the Panel accordingly gave very limited weight to the testimonials.

323. The Panel assessed the personal component of impairment in line with the ‘test’ set out in Cohen. It considered that the Registrant’s conduct was remediable in principle; it resulted from serious errors of judgment, made in circumstances where she now says she was working when she was probably not fit to do so.

324. As to whether the conduct had been remedied, the Panel considered that the allegations, now proven, date back to 2018 and 2019 and that the Registrant has had some five years to reflect on her actions and develop insight. However, she had not done so until the weekend before this resumed hearing. This, combined with the fact that the Registrant had previously denied the allegations during two local investigations and the earlier part of this hearing greatly undermined both her apology and the limited insight shown in her reflective statement. The Panel was particularly concerned by the following written by the Registrant within her reflective statement: “I know I made a huge mistake and have been dishonest but I was deeply ashamed and in denial up until recently. I never expected this, I know I should have because I caused this but honestly I didn’t expect this…”.

325. The Panel had concerns as to the genuineness of the Registrant’s apology, and the extent to which it had arisen out of concern as to the potential outcome of this regulatory process, now knowing that the Allegation has been found proven.

326. The content of the Registrant’s reflective statement, when considered alongside the GP report, provided the Panel with little assurance that the Registrant is now able to manages stresses, and cope with difficulties that arise in her personal life in a more responsible way. This was because the Registrant was, at the time of both incidents, receiving regular medical input and support, from both her GP and specialists. So, whilst the Registrant says that she now seeks help from her GP when needed, this did not, on the evidence before the Panel, represent a change. Whilst the Registrant says that a number of stressors that were previously present have now resolved, the Panel had been given little assurance that if different stressors arose, the Registrant has developed coping strategies which would mean she would not resort to self-medicating.

327. The Registrant referred in her reflective statement to being more open with people at work and asking for help when needed. However, the fact that the Registrant had not been fully honest with her manager prior to the manager’s testimonial being written, as set out above, cast doubt on the Registrant’s assertion that she had changed, and was now open with people (and sought help) as she suggested. The Panel noted the same lack of transparency applied to all of the other testimonials which had been placed before it.

328. The Panel concluded that whilst the Registrant has taken some initial steps in her remediation journey, nevertheless, in the Panel’s view there remains a long road to full remediation. The Panel further concluded that the extent to which the Registrant’s insight was genuine and meaningful was questionable and as of today, the Registrant has not shown anything close to fully developed insight. In summary:

• The Panel was concerned about the genuineness of the Registrant’s admission and apology. The Panel could not ignore the Registrant’s admitted dishonesty and her consistent denial of these allegations including during this hearing under affirmation.

• The Registrant appeared to be proactively accessing appropriate medical support in 2018/2019;

• There is no evidence that the Registrant is now being more open and honest with managers, colleagues and others: none are aware of her recent admission to inhaling anaesthetic gases on two occasions at work;

329. It followed that there remains a real risk of repetition. The Panel was not persuaded that the Registrant will not seek to self-medicate in the future should her health or life stressors become too much. The Panel was cognisant, in reaching this conclusion, that there is no suggestion of repetition since 2019. The Panel noted that the Registrant has not continuously been at work (with access to anaesthetic gases), as she has had two periods of maternity leave. Nevertheless, there was no articulation, in her reflection, of the methods the Registrant will employ to manage significant stress or adverse health going forward, beyond saying that she will no longer work when too unwell to do so. How she would recognise this, and the alternative strategies she will use was not apparent from her statement.

330. Having found a risk of repetition, the Panel went on to consider the ‘tests’ in CHRE v NMC and Grant. She had in the past, and was liable in the future to put patients at unwarranted risk of harm, given that she had worked in circumstances where she now acknowledges she was not fit to do so, and the Panel has found a risk of repetition.

331. The Panel determined that the Registrant is currently impaired on the personal component.

332. The Panel moved to consider the public interest and whether a finding of impairment is needed to maintain standards and uphold public confidence. Continuing with the ‘Grant’ test, the Panel considered that the Registrant had brought the profession into disrepute through the use of anaesthetic gases for self-medication, whilst on shift and needing to care for patients. This was not conduct that the public would expect and they would likely lose confidence in the profession if this were tolerated by the Regulator.

333. The Panel noted the quote from judgment it had been referred to in Fopma v GMC:

“A failure to find impairment in any given case, … is tantamount to an indication on behalf of the profession that conduct of the kind need not have regulatory consequences.”

334. The Panel considered that this was not conduct that should be tolerated, and a message needed to be sent to the Registrant and to the profession accordingly. The Panel bore in mind its finding at the facts stage as to the seriousness of the Registrant’s conduct, and that there had been little amelioration of this given her very limited insight. It considered that the Registrant’s denials over years of investigation, first by the employer and then by the regulator, seriously undermine the trust that her employer, her colleagues and the public will be able to place in her as a professional. This, combined with the damage to the reputation of the profession consequent on the underlying conduct of misusing drugs whilst at work, led the Panel to determine that a finding of impairment on the public component is necessary in order to both uphold standards and maintain public confidence in the profession and the regulatory process.

335. In conclusion, the Panel found the Registrant currently impaired on both the personal and public components.

Decision on Sanction

336. Mr Bridges on behalf of the HCPC submitted that the Panel should follow the guidance set out in the Sanctions Policy, and in light of its findings that the Registrant is impaired on the public component, bear in mind the case of Bolton v Law Society where it was said that “The reputation of the profession is more important than the fortunes of the individual member.”

337. Mr Bridges submitted that there are a number of aggravating features in this case as follows:

• Potential harm

• Breach of trust

• Lack of insight [para 330]

• Misconduct repeated

• Lack of remediation

• Risk of repetition [para 334]

338. Having received the Panel’s written determination in relation to misconduct and impairment, the Registrant submitted four testimonials, including from her manager, who confirmed that they had seen the Registrant’s written reflection (within which she admits to being dishonest) and that they each stand by their positive character references. The Registrant gave evidence having read the Panel’s decision on impairment. She had declined the opportunity the previous day, and stated in her written reflection document:

“I struggle with eye contact, and speaking makes me feel very uncomfortable. Even a simple phone call causes me distress and I work myself up and replay the situation over and over again, and start to hyperventilate. Due to this I am unable to say this to you in person, because I cannot physically do this effectively…”

339. In her evidence the Registrant expanded on her written reflection and gave some examples of how she now manages her health and stress at work. The Panel, having already made its decision and found current impairment considered that the Registrant’s evidence was not relevant to its decision at the sanction stage.

340. Ms Shah submitted that the Panel, when determining the appropriate sanction, should keep in mind the general principles, namely that sanction is not intended to be punitive, but is imposed to protect the public, uphold standards and maintain confidence in the profession. She submitted that there is a public interest in an otherwise competent practitioner returning to practice when it is safe to do so.

341. Ms Shah submitted that the insight the Registrant had shown was genuine, and this was demonstrated by the fact that the Registrant had today provided her written reflection to her manager and work colleagues who had given testimonials. She was now being honest with everyone. She recognised what she did was wrong, and her denials have wasted a lot of time and money.

342. Ms Shah submitted in mitigation that the Registrant now not only acknowledges her wrongdoing, but she has taken responsibility for it. She has acknowledged that she brought the situation upon herself and has said she is disgusted by her behaviour.

343. Ms Shah submitted that given the foregoing, strike-off would be disproportionate. This is not an ODP who should not be on the register. She is an otherwise a good ODP and therefore a period of 9 - 12 months suspension would be appropriate and proportionate.

344. The Panel accepted the advice of the Legal Assessor. It was aware that:

• It should have regard to the sanctions policy and begin by considering whether there are any particular mitigating or aggravating features;

• The attitude of the Registrant to the allegations is something which can go in their favour or against them at the stage of determining sanction: Nicholas-Pillai v. General Medical Council [2009] EWHC 1048 (Admin)

• Relevant guidance was given in Sawati v GMC [2022] EWHC 283 (Admin): Before a Tribunal can make fair use of a rejected defence as an aggravating feature, it needs to remind itself of Lord Hoffmann's judgment in Misra v GMC [2003] UKPC 7 and consider:

(i) how far 'lack of insight' is evidenced by anything other than the rejected defence; and

(ii) the nature and quality of the defence, identifying clearly any respect in which it was itself a deception, or a lie

In other words, the Panel should explain why the failure to tell the truth at the hearing amounts to an aggravating feature.

• Then work through the sanctions starting with the least restrictive;

• Have regard to the HCPC’s over-arching objective of protecting the public, maintaining public confidence in the profession and upholding proper professional standards

• Impose the minimum sanction necessary to meet the regulator’s overarching objective, bearing in mind that the purpose of sanction is not to punish; Meadow v GMC [2007] 1 QB 462;

• Ensure that any sanction is proportionate, whilst bearing in mind that the interests of the profession take precedence; Bolton v Law Society (1994) 1 WLR 512;

• Bear in mind that personal mitigation or remediation carries little weight at the sanction stage, given that the purpose of sanction is to protect the public and uphold the public interest; GMC v Patel [2018] EWHC 171 (Admin);

345. The Panel began by considering aggravating and mitigating features. It found the following to be aggravating features:

• Potential harm to patients

• Abuse of position, in that the Registrant had access to anaesthetic gases due to her role as a registered professional

• Lack of insight

• Repeated misconduct

• Lack of meaningful remediation

• Risk of repetition

• Dishonesty in her evidence under affirmation, because the Registrant had not merely put the HCPC to proof, but positively lied in her evidence.

346. The Panel considered the following to be mitigating factors:

• There had been no further concerns or repetition since September 2019;

• The Registrant is an otherwise competent ODP;

• The Registrant now accepts personal responsibility, that she had brought this matter upon herself and is disgusted with her behaviour.

347. The Panel moved to consider the available sanctions. It was of the view that taking no further action or imposing a Caution Order would be insufficient to meet the regulatory objective, given that it had found that the Registrant’s misconduct had the potential to harm patients and that there was a risk of repetition due to underdeveloped insight. In addition, neither of these sanctions were proportionate to the gravity of the misconduct and as such would not uphold confidence in the profession or the regulatory process.

348. The Panel then considered a Conditions of Practice Order. The attitudinal nature of the misconduct which included going into theatre on the pretence of doing paperwork, to misuse anaesthetic gases was not conduct in respect of which workable conditions could be formulated. This was not a clinical competence issue, but if conditions were to prevent repetition, then close monitoring at all times would be needed. This was unlikely to be workable in practice. Further, taking into account that the public interest is engaged, the Panel considered that an informed member of the public would not have confidence in the regulatory process if conditions were imposed, as the nature of the underlying conduct, combined with the aggravating features, was so serious.

349. The Panel then considered whether a Suspension Order would be proportionate in the circumstances of this case. It noted that according to the Sanctions Policy, a Suspension Order may be appropriate where:

• the concerns represent a serious breach of the Standards of Conduct, Performance and Ethics;

• the Registrant has insight;

• the issues are unlikely to be repeated; and

• there is evidence to suggest the registrant is likely to be able to resolve or remedy their failings.

350. The Panel had already found that the Registrant’s misconduct was a serious breach of the HCPC’s Standards, and her actions were exacerbated by the aggravating features set out above.

351. The Panel had found the Registrant has started to develop insight, and a period of suspension would allow her further time to reflect and develop this more fully.

352. The Panel had found a risk of repetition, and to that extent, it questioned whether a Suspension Order could be sufficient to meet the overarching objective.

353. The Panel had found the misconduct remediable, and the Registrant has indicated that she is willing to work to remedy her past wrongdoing.

354. Taking everything in the round, the Panel took the view that the Registrant’s misconduct did not fall within the types of serious, persistent, deliberate or reckless acts involving behaviours of the most serious kind as outlined in the HCPC’s Sanctions Policy. Notwithstanding the Panel’s finding of a risk of repetition, the Panel considered that a Striking-Off Order would be disproportionate. The Panel considered the Registrant’s conduct, in light of her belated admission and developing insight, was not so serious as to be incompatible with continued registration. In reaching this decision the Panel bore in mind the public interest in an otherwise competent professional being able to return to practice in due course.

355. Therefore, the Panel determined that the proportionate sanction, was a Suspension Order for 12 months. This would both protect the public, by allowing time for further reflection and development of full insight, it would send a message to the profession that such conduct is not tolerated, and it would uphold public confidence in the profession and the regulatory process, because the public will see that a severe sanction, just short of strike-off, has been imposed.

356. Before she is able to return to practice the Registrant will need to satisfy a review panel that she has remedied her misconduct and that she is fit to return to practice. The Panel considered that a future reviewing panel is likely to be assisted by:

• Evidence of further reflection and more fully developed insight into the implications of the misconduct on patients, colleagues and the public perception of the ODP profession;

• Evidence of CPD with a focus on professionalism, and also to maintain clinical skills during the period of absence from practice.

Order

The Registrar is directed to suspend the registration of Ms Emma Jones for a period of 12 months from the date this Order comes into effect.

Notes

Right of Appeal
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

Interim Order Application
1. In light of its findings, the Panel next considered an application by Mr Bridges for an Interim Suspension Order to cover the appeal period before the final order becomes effective.

2. Mr Bridges submitted that an interim order should be made to cover the appeal period in light of the Panel’s finding that a Suspension Order is necessary to protect the public and in the public interest. He submitted that an interim order is necessary on both these grounds. He asked for an interim order for 18 months to cover the time taken to deal with any appeal.

3. Ms Shah on behalf of the Registrant opposed the application. She submitted that this is not a rubber stamping exercise and the Panel needs to be satisfied that an order is necessary to protect the public if imposed on the public protection ground. Ms Shah submitted that the Registrant has not repeated her conduct since 2019, and has even less incentive to do so now in view of the ongoing regulatory process. Ms Shah submitted that the ground of necessity is not made out. Nor was the high threshold reached to impose an order in the public interest alone.

4. Ms Shah further submitted that an interim order is would not be proportionate. The Registrant is the main breadwinner. A 28-day ‘grace period’ before the Suspension Order comes into effect would give her time to find an alternative role.

5. The Legal Assessor advised the Panel that it could make an interim order if doing so was necessary for protection of the public, otherwise in the public interest or in the interests of the Registrant. The Panel should bear in mind its previous findings and consider whether it is necessary to place any restriction on the Registrant’s practice as of today. If so, it should determine the appropriate form and duration of any interim order.

6. The Panel considered whether to impose an interim order. It was mindful of its earlier findings that the Registrant’s misconduct gave rise to potential patient harm. Her insight is limited and coping strategies not fully developed. She may again misuse anesthetic gases and as such she poses a risk to patients. In these circumstances, an informed member of the public would expect an order to be in place to cover the appeal period. The Panel decided that it would be incompatible with its earlier findings if there was no interim order in place.

7. The Panel was aware that its decision would be likely to cause the Registrant hardship, and noted that she is the main breadwinner. However, in this regulatory regime, the Panel’s focus must be on the protection of the public.

8. Accordingly, the Panel concluded that an interim Suspension Order is necessary for the protection of the public and is otherwise in the public interest. It made the interim order for 18 months, to allow for any appeal. When the appeal period expires this interim order will come to an end unless an appeal has been filed with the High Court. If there is no appeal, the final order shall take effect when the appeal period expires.

9. Accordingly, the Panel concluded that an Interim Suspension Order is necessary for the protection of the public and otherwise in the public interest. It made the interim order for 18 months, to allow for any appeal. When the appeal period expires this interim order will come to an end unless an appeal has been filed with the High Court. If there is no appeal, the final order shall take effect when the appeal period expires.

Hearing History

History of Hearings for Mrs Emma Jones

Date	Panel	Hearing type	Outcomes / Status
08/04/2024	Conduct and Competence Committee	Final Hearing	Suspended
20/11/2023	Conduct and Competence Committee	Final Hearing	Adjourned part heard